Monday, April 13, 2015
Blackwater guards who shot Iraqi civilians all given lengthy federal sentences
As reported in this new Washington Post piece, a "federal judge in Washington handed down prison terms of 30 years to life behind bars to four Blackwater Worldwide guards convicted in a deadly 2007 shooting that killed 14 unarmed Iraqis and injured others in a Baghdad traffic circle." Here are the basic details:
U.S. District Judge Royce C. Lamberth sentenced Nicholas A. Slatten of Sparta, Tenn., to life in prison. Slatten is the only of the four guards convicted of murder in the incident, in which American security contractors fired assault rifles and grenades into halted noonday traffic, a low point of the U.S. war in Iraq that sent relations between the two countries into a crisis.
Three other guards, Paul A. Slough of Keller, Tex.; Evan S. Liberty of Rochester, N.H.; and Dustin L. Heard of Knoxville, Tenn., were convicted of multiple counts of manslaughter and attempted manslaughter in the Sept. 16, 2007, incident at Baghdad’s Nisoor Square. All three were sentenced Monday to 30 years plus one day in prison.
Tennessee Supreme Court postpones all scheduled executions while considering execution protocol
As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:
Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.
Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....
Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.
Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.
Nearly 7 years after her crime, Jodi Arias finally officially gets LWOP sentence in Arizona
As reported in this Reuters article, an "Arizona judge sentenced former waitress Jodi Arias to life in prison with no possibility of parole on Monday for shooting and stabbing her ex-boyfriend to death in 2008." Here is more:
Maricopa County Superior Court Judge Sherry Stephens said Arias' crime, which attracted national attention, was "especially cruel ... (and) involved substantial planning and preparation."
Arias, 34, had escaped a possible death sentence last month after a lone juror at her sentencing retrial refused to back the death penalty throughout five days of deliberations.
She was found guilty of murder in 2013 after a trial packed with lurid details and graphic testimony. Prosecutors said she killed her former partner in a jealous rage, while Arias argued she acted in self-defense.
Shackled and clad in jail stripes, Arias told the court she had long wanted to be put to death for the crime. "But I had to fight for my life just like I did on June 4, 2008, because I realized how selfish it would be for me to escape accountability for this mess I created," Arias said.
She said she remembered the moment she plunged the knife into Travis Alexander's throat. "He was conscious. He was still trying to attack me. It was I who was trying to get away, not Travis, and I finally did," she said. "I never wanted it to be that way."
The 30-year-old victim was found in a shower at his Phoenix-area home. He had been shot in the face and stabbed more than 20 times, and his throat was slashed almost from ear to ear.
Eleven of the jurors from Arias' retrial were in court for the sentencing, wearing blue clothing and ribbons in memory of the victim. The holdout juror did not attend. After they failed last month to reach a unanimous verdict on whether she should be executed, Stephens had to choose between sentencing Arias to life in prison or to life with the possibility of parole after 25 years.
"The defendant did not render aid to the victim ... (and) destroyed evidence at the crime scene. The defendant went to great lengths to conceal her involvement," Stephens said. "The court finds the mitigation presented is not sufficiently substantial to call for leniency and that a natural life sentence is appropriate."
Samantha Alexander, a younger sister of the victim, told the court Arias had sought to smear Travis throughout and that she deserved to be put to death. "She continuously makes atrocious lies about my brother, dragging his name through the mud like she dragged his body through his own blood," she said.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Jodi Arias now pleading for a life sentence before sentencing jury
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
- Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
Lengthy list of hard criminal justice questions for the 2016 Prez field
With Hillary Clinton and soon Marco Rubio throwing their hats into the proverbial ring, it is now no longer too early to start assembling some hard criminal justice reform question for persons pursuing the top position in the Executive Branch of the US Government. Helpfully, Radley Balko go this task off to a running start last week via this extended Washington Post piece headlined "Are you running for president? Please answer these questions about the criminal justice system." A few too many of Radley's questions are focused on policing issues for my taste, but here are a few sentencing fans may like:
— Several media reports, advocacy groups and judicial opinions (including a recent opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit) have described an epidemic of prosecutor misconduct across the country. Do you believe there is a widespread problem of prosecutor misconduct in America? Do you believe the federal government has a responsibility to address it?
— What do you believe is the primary function of prisons — to punish people for doing bad things, to isolate dangerous people from society, or to rehabilitate criminals so they can reenter society as productive citizens? What do you believe our prisons primarily do today?
— Should people convicted of nonviolent felonies be permitted to vote once they’ve served out their sentences?
— One sign of moral leadership is a willingness to do the right thing even if it is politically unpopular. According to U.S. Sentencing Surveys of federal judges, federal judges by a wide margin believes the federal sentencing guidelines for one crime is more disproportionate and unfair than any other. That crime is possession of child pornography. Would you support an effort to pass more reasonable sentences for this crime?....
— Do you believe that Colorado and Washington state are in violation of federal law by legalizing recreational marijuana? Would you attempt to enforce the federal marijuana laws in those states? What if other states follow suit? What if other states begin to legalize other illicit drugs?...
— The last three presidents have been historically stingy with the pardon and clemency power. The power today is mostly used to confer mercy and redemption on people who have already served their time. But it was originally intended as a last check to prevent any injustices that may have slipped through the system. What approach would you take to granting pardons and commutations? Do you think the last two administrations were too generous, too frugal, or just about right?...
— We haven’t had a justice on the Supreme Court with any real criminal defense experience for nearly a quarter century. We currently only have one with any day-to-day criminal law experience at all. Given that the Supreme Court routinely issues rulings with profound implications on the powers of police and prosecutors and the civil rights of suspects, some commentators are troubled by the lack of criminal law experience on the court, and in particular the lack of any experience from the perspective of criminal suspects. Do you agree? Could you see yourself nominating a justice with significant criminal defense experience?
— Do you believe an innocent person has been executed since the United State reinstated the death penalty in 1976? If so, do you believe this is an indictment of the death penalty, or that the benefits of capital punishment outweigh this risk?
I would be very excited (and somewhat surprised) if even a few of these questions were to receive serious attention by folks seeking the presidency in the months ahead. And if I were to pick a single (simple?) question to push for an answer on, it might be just "What do you believe is the primary function of prisons?".
I would be eager to hear from readers which of these question they would most like to see answers by the likes of Senators Clinton, Cruz, Paul and Rubio (and others). I also would be eager to see other like questions suggested in the comments. (If I were adding one, I might add something about the application of the Eighth Amendment to adult prison sentences or significantly increasing federal sentences based of acquitted conduct.)
Sunday, April 12, 2015
"Defending the Jury: Crime, Community, and the Constitution"
The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:
This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive. Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system. It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.
Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:
One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.
Why are plea deals so common? Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement. For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence. In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.
There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise. But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done. One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”
Interesting update on continued GOP blockade of AG-nominee Lynch
Given how much many members of GOP claim to oppose what Eric Holder has done as Attorney General, it remains notable and somewhat comical that the GOP-controlled Senate continues to be in no rush to get him out of the job. This lengthy article, headlined "Loretta Lynch AG nomination drags on, leaving her supporters to question why," tells the latest chapter of this story. It starts this way:
President Obama’s nomination of Loretta Lynch to become the country’s first African-American woman attorney general is a historic pick. Her confirmation, however, is now taking on new historical relevance as her wait for a confirmation vote by the full Senate drags into its sixth month.
The period between the Senate Judiciary Committee’s vote to confirm and the full Senate vote — which in Lynch’s case has not been scheduled — has lasted longer for her than for any attorney general nominee in recent history. By the time the Senate returns from Easter recess on Monday, it’ll have been longer than the eight previous nominees for the job — combined.
Lynch, currently the U.S. attorney for the Eastern District of New York, cleared the committee February 26 by a vote of 12-8, with Republican Sens. Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona joining Democrats in sending the nomination to the full Senate.
Obama nominated Lynch to replace Attorney General Eric Holder on November 8, after Holder had announced plans to leave the post weeks earlier.
"Ending the Death Lottery"
The title of this post is the headline of this notable new article by William Berry III now available via SSRN. Here is the abstract:
When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.
This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.
After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.
Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.
Considering one defendant getting a second look due to Miller retroactivity
One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP. Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant. The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:
Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.
He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.
From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.
At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead. Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.
But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....
The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.
Ten states, including Illinois, are applying the standard to pre2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive. The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....
Here and around the country, victim rights groups have strongly opposed the reopening of past sentences. “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a cofounder and board member of the National Organization of Victims of Juvenile Murderers.
She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said. “Our mother was devastated.”
A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone.
Recreating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.
Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....
Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.
The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence. Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...
The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court. During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.
April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Saturday, April 11, 2015
Reviewing Massachusetts' "long and tortured history" with the death penalty
The AP has this notable new piece headlined "in Massachusetts, a Long and Tortured Death Penalty History." Here are excerpts:
Massachusetts hasn't executed anyone since 1947, but during most of its history it allowed capital punishment for crimes ranging from murder to witchcraft. Jurors weighing whether Boston Marathon bomber Dzhokhar Tsarnaev should die under the federal death penalty statute or spend the rest of his life behind bars are the latest to do so in a state with a long and tortured history with execution:
Using death as a punishment was common in the state's earliest days. In one notable case, Mary Dyer, was put to death in Boston in 1660 after she was banned by the Puritan leaders of the Massachusetts Bay Colony for being a Quaker. Dyer returned several times in defiance of anti-Quaker laws and was eventually hanged. A statue of Dyer sits in front of the Statehouse as a caution against religious intolerance. Capital punishment reached a new fervor a few decades later, when 19 people were hanged and one person crushed to death during the 1692 Salem witch trials.
Perhaps the most infamous Massachusetts death penalty case of the 20th century focused on Italian immigrants and committed anarchists Nicola Sacco and Bartolomeo Vanzetti. The two were arrested several weeks after a payroll clerk and a security guard were shot and killed during an armed robbery at a Braintree shoe factory. The 1921 trial drew international attention. After they were convicted and sentenced to die in the electric chair, political dissidents, unionists, Italian immigrants and other supporters ... demonstrated across the United States and Europe arguing the two were targeted for their political beliefs and immigrant status. They were executed in 1927. The case still remains contentious....
In the decades after the Sacco and Vanzetti trial, the appetite for capital punishment began to wane in Massachusetts. In 1947, the state carried out its last executions, putting convicted murderers Philip Bellino and Edward Gertson to death in the electric chair at Charlestown State Prison. Although capital punishment remained legal, governors refused to sign death warrants over concerns that the penalty offered no more safety for the community than life in prison....
In 1975, the Massachusetts Supreme Judicial Court curtailed capital punishment, holding that a mandatory death sentence for rape-murder constituted cruel or unusual punishment in violation of the state constitution's Declaration of Rights. In 1982, voters approved a constitutional amendment that would have restored the death penalty and the governor signed a new law also reinstating capital punishment in certain cases. In 1984, the court ruled that law unconstitutional saying it impermissibly burdened a defendant's right against self-incrimination and trial by jury. The ruling effectively banned the death penalty.
In the 1990s there was a new push to revive the death penalty spearheaded by a series of Republican governors. The effort gained momentum following the 1997 abduction and murder of 10-year-old Jeffrey Curley by two men who later received life sentences. A death penalty bill filed in the wake of Curley's murder failed after a single lawmaker switched his vote during reconsideration.
In 2005 former Gov. Mitt Romney unveiled what he called the "gold standard for the death penalty in the modern scientific age" that would bring back capital punishment for people convicted of terrorism, multiple murders and killing law enforcement officers, using conclusive scientific evidence to ensure only the guilty were executed. The bill failed.
Friday, April 10, 2015
Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission
Though the US Sentencing Commission's vote yesterday to revise the fraud sentencing guidelines is very big news for white-collar sentencing in future high-profile federal cases (basic here), this notable sentencing reform got very little news attention. Here are excerpts from this Reuters piece with the most fulsome coverage I have seen:
A federal judicial panel on Thursday adopted new guidelines for sentencing white-collar criminals in fraud cases, in an effort to make punishments more fairly reflect the harm suffered by victims and the intent of offenders to cause harm. The changes approved by the U.S. Sentencing Commission will take effect on Nov. 1 unless Congress objects.
They follow years of criticism from defense lawyers and some judges who say federal sentencing guidelines have led to overly severe punishments, potentially reaching life in prison, because they emphasize financial losses such as from falling stock prices. Judges need not follow the guidelines, but must consider them. "These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss," said Chief Judge Patti Saris of the federal court in Massachusetts, who chairs the commission.
The changes call for "intended" losses to reflect financial harm that defendants "purposely sought to inflict," and give judges greater discretion in factoring actual losses in stocks, bonds or commodities into punishments. They also permit greater punishments when even just one or a few people suffer "substantial financial hardship" from fraud, while current guidelines emphasize the number of victims, even if their losses are small. Another change adjusts fraud losses for inflation for the first time.
The U.S. Department of Justice had expressed concern that the new definition of intended loss could let defendants claim they never intended to financially harm anyone. It also said an inflation adjustment could negate the "overwhelming societal consensus" favoring tougher punishments for fraud, and reduce the length of typical sentences by roughly one-fourth. On the other hand, the Justice Department welcomed the greater focus on actual harm inflicted. A Justice Department spokesman declined to comment on Thursday.
David Debold, a Gibson, Dunn & Crutcher partner who led an advisory group to the commission, said the changes on balance "tend to make sentences more fair" in fraud cases. "They make punishment better reflect the harm that defendants actually intended," he said. "That's an important change, and a good one."
Prior related post:
Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term
As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:
Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...
Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."
But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...
Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...
The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....
"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."
The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.
The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."
Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.
"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.
April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
Penalty phase in Boston Marathon bombing capital trial scheduled to start April 21
As reported in this NBC News piece, the "penalty phase in the federal trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev will begin on April 21, a judge ordered Friday." Here is more:
The jury has been asked to come to court next week — on April 14 — to receive a brief set of instructions. This year's Boston Marathon will be held on April 20. "The defendant has requested that the penalty phase commence in approximately two weeks so as to, among other things, allow the defendant additional time to resolve outstanding logistical issues with a number of potential witnesses. It is not uncommon for there to be a brief recess between phases in a capital case," Judge George O'Toole said in the order.
Tsarnaev, 21, was convicted for his role in the April 15, 2013, twin bombings that killed three people and injured 260 others at the Boston Marathon — the worst terror attacks on American soil since 9/11. A jury found him guilty Wednesday on all 30 criminal counts. Seventeen of the 30 counts carry the possibility of the death penalty.
This related NBC News piece has some interesting poll data reported under the headline "Americans Divided Over Death For Boston Bomber Dzhokhar Tsarnaev, Poll Finds."
Recent related post:
Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction
Long-time readers may recall the remarkable state sentencing story, covered here and here, involving Daniel Enrique Guevara Vilca. In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children. On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today. Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):
Daniel Guevara-Vilca appeals his convictions for possession of child pornography. Owing to a discovery violation by the State, we reverse and remand for a new trial....
During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count. The file names generally contained descriptive terms. All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program. The files were found in thirteen different folders on the computer, including the recycle bin....
The jury returned guilty verdicts on all 454 counts. Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment. The trial court sentenced Guevara-Vilca to 454 concurrent life terms....
Guevara-Vilca raises multiple issues on appeal. We agree with his assertion that the trial court erred in its handling of the State's discovery violation. The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....
We reverse Guevara-Vilca's convictions and remand for a new trial. This renders moot, for now, the sentencing issue raised on appeal. Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment. Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand. But the issue, if raised, deserves serious consideration by the sentencing court. Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.
Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors. Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's." Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).
Prior related posts:
- Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn
- "Life Sentence for Possession of Child Pornography Spurs Debate Over Severity"
Highlighting and assailing Prez Obama's "weak approach to pardons" and Clemency Project 2014
Today's Washington Post has this potent new commentary authored by George Lardner Jr. and P.S. Ruckman Jr. headlined "Obama’s weak approach to pardons." Here are extended excerpts:
When it comes to the pardon power, President Obama is still more talk than action. According to the most recent Justice Department data, he has granted only one pardon for every 29 petitions that have come before him, fewer than any of the past seven presidents. Last week, he signed 22 commutations, but his record on those is even more dismal because he has such a staggering backlog, the biggest of any president in U.S. history. It is a backlog that he and his administration invited.
But you wouldn’t know that from his rhetoric. In a recent interview with Buzzfeed, the president said, “We’ve revamped the pardoning office in the Justice Department because, traditionally, we weren’t reaching a lot of nonviolent offenders who, if they received a pardon, perhaps would be in a better position to get employed.”... What he didn’t say is that he has let those applications pile higher and higher.
The Justice Department named a new pardon attorney in November, and her overburdened office now has more lawyers than before — but if that was the “revamping,” it has yet to produce significant results. Despite receiving unprecedented numbers of petitions, Obama has granted only 64 pardons and 43 commutations. Only six other presidents have been less merciful, and most of those served a single term or less.
Without counting a program called Clemency Project 2014, which makes his record worse, Obama has granted just one of every 779 commutation petitions addressed to him. Every president since Richard Nixon (who approved one of every 15 commutation petitions) did better....
Obama’s “new approach” to pardons remains just a promise. More than a year ago, the Justice Department announced that Clemency Project 2014 would aim to find federal prisoners who deserved a commutation, which reduces the severity of a sentence. But pardons, which forgive applicants for their crimes and restore their civil rights, were excluded.
This drive for more commutations has become a disaster, notwithstanding last week’s action. When the project was announced in early 2014, then-Deputy Attorney General James M. Cole asked the legal profession for help in composing “effective and appropriate” petitions for inmates serving harsher sentences than they would have received “if convicted of precisely the same offenses today.” Since then, The Post reports, more than 35,000 inmates — some 16 percent of the federal prison population — have asked for commutations under the initiative. And since then, Obama has commuted just 34 sentences.
More than 1,000 lawyers at more than 300 law firms have offered to participate in Clemency Project 2014. Yet little more than 5,000 of the 35,000 applications have been assigned to a lawyer....
The unduly restrictive rules spelled out by Cole last spring are an even larger problem. It should not be too difficult for prisoners to show they got a stiffer sentence than they would have received today, but that’s not enough. Under the criteria, a prisoner must have served at least 10 years, have no significant criminal history and have had no involvement with gangs, cartels or organized crime. The program also penalizes prisoners who previously asked for commutations by placing Clemency Project 2014 petitioners in line ahead of them.
Just as troublesome is the fact that the critical decisions about whether the rules have been met have been farmed out to private organizations — the ACLU, Families Against Mandatory Minimums, the American Bar Association and the National Association of Criminal Defense Lawyers. These are fine groups, but the pardon power is supposed to be reserved for the president, and saying no, which these private agencies can do, is as much an exercise of that power as saying yes.
To Obama’s credit, he wrote a letter to the 22 inmates whose sentences he commuted. All of them had been convicted of nonviolent drug offenses, in many cases under punitive rules no longer in effect. But there must be hundreds if not thousands more who are just as qualified. It was a nice try by the White House to say last week that Obama’s commutation record was now better, numerically, than George W. Bush’s. What it didn’t say was that Bush’s record on commutations (11) was one of the worst in history and that he granted almost three times as many pardons as Obama has (188 to 64).
President Obama keeps referring to the Justice Department as though it were in charge of the process while he remains a frustrated bystander. He conceded in South Carolina that “we have a pretty strict set of criteria” for grants of clemency, but he spoke as though he was handcuffed by those criteria (when, in fact, he isn’t). Criticisms of the pardon process usually focus on the prosecutorial mindset of officials at Justice and blame them for rejecting too many deserving applications. It’s time for the president to take the heat and stop letting Justice be the scapegoat.
Thursday, April 9, 2015
"Reality check: Is sex crime genetic?"
The question in the title of this post is the headline of this interesting new Science piece that a helpful reader sent my way. Here are excerpts:
A splashy headline appeared on the websites of many U.K. newspapers this morning, claiming that men whose brothers or fathers have been convicted of a sex offense are “five times more likely to commit sex crimes than the average male” and that this increased risk of committing rape or molesting a child “may run in a family’s male genes.” The study, published online today in the International Journal of Epidemiology, analyzed data from 21,566 male sex offenders convicted in Sweden between 1973 and 2009 and concluded that genetics may account for at least 40% of the likelihood of committing a sex crime. (Women, who commit less than 1% of Sweden’s sexual offenses, were omitted from the analysis.) The scientists have suggested that the new research could be used to help identify potential offenders and target high-risk families for early intervention efforts.
But independent experts — and even the researchers who led the work, to a certain degree — warn that the study has some serious limitations. Here are a few reasons to take its conclusions, and the headlines, with a generous dash of salt.
Alternate explanations: Most studies point to early life experiences, such as childhood abuse, as the most important risk factor for becoming a perpetrator of abuse in adulthood. The new study, however, did not include any detail about the convicted sex criminals’ early life exposure to abuse. Instead, by comparing fathers with sons, and full brothers and half-brothers reared together or apart, the scientists attempted to tease out the relative contributions of shared environment and shared genes to the risk of sexual offending....
Data on sexual crimes are tricky to obtain and parse: It’s extremely difficult to collect sufficient data about sexual offenders and their families to detect statistically robust patterns. Sweden is unusual because its nationwide Multi-Generation Register allows researchers to mine not only anonymized criminal records, but also to link them with offenders’ family records as well. Even with access to a nationwide database, Seena Fazel, of the University of Oxford in the United Kingdom, and colleagues had to include a very diverse range of offenses, from rape to possession of child pornography and indecent exposure, to maintain a large sample size.
The team did do some analysis by type of offense, separating rape from child molestation, for example. But some researchers worry that attributing a genetic basis to such a wide swath of behaviors is premature. There are also problems with relying on conviction records: Many more sexual crimes are committed than reported, and the proportion of those that go to trial is even smaller.
In addition, families with one member who has been convicted of a sexual offense are likely to be under much higher scrutiny by social services and law enforcement, leading to potential detection bias that artificially enhances the perception that sex crimes run in families, says Cathy Spatz Widom, a psychologist at the City University of New York who studies the intergenerational transmission of physical and sexual abuse. In a recent study, for example, Widom found that parents with a formal record of being abused as children were 2.5 times more likely to be reported to Child Protective Services for abusing their own children than parents in a control group who admitted to abusing their children, or whose kids said they had been mistreated.
The absolute risk of becoming a sex offender is very low: One of the study’s more dramatic-sounding findings is that brothers and fathers of sex offenders are four to five times as likely as men in the general population to commit sex crimes themselves. That statistic seems pretty striking until you look at the low prevalence of sex offense convictions in Sweden overall....
In summary, there’s no doubt that some families are at a higher risk for abuse and criminal behaviors, including sexual offenses. But we’re a long way from pinning down genes that can explain why a person commits rape or any other sex crime.
Effective coverage of legal land mine created by DOJ spending restriction in medical marijuana cases
As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Today, the New York Times has this extended and informative discussion of this federal congressional directive and its uncertain meaning and impact four months after its enactment. The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:
In December, in a little-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”
In the most advanced test of the law yet, [medical marijuana defendant Charles] Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.” In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”
But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.
With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....
The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance. “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.
Mr. Farr said, “For the feds to come in and take this hardline approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.” The sponsors said they were planning how to renew the spending prohibition next year.
Some prior related posts:
- Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws
- Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?
- Impact of the 2015 federal budget's medical marijuana spending restriction remains unclear
US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)
As reported in this official press release, "United States Sentencing Commission voted today to adopt changes to the fraud guideline to address longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender’s intent. The Commission also voted to change the drug quantity table to account for the rescheduling of hydrocodone." Here are some details from the press release concerning this important federal white-collar sentencing news:
The Commission altered the victim enhancement in the fraud guideline to ensure that where even one victim suffered a substantial financial harm, the offender would receive an increased sentence. It also made changes to refocus economic crime penalties toward the offender’s individual intent, while maintaining an underlying principle of the fraud guideline that the amount of loss involved in the offense should form a major basis of the sentence.
“We found through comprehensive examination that the fraud guideline provides an anchoring effect in the vast majority of cases, but there were some problem areas, particularly at the high-end of the loss table,” said Chief Judge Patti B. Saris, chair of the Commission. “These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.”
The Commission also acted today to provide additional guidance as to which offenders are eligible to receive a reduced sentence as a minor or minimal participant in an offense. “This change is intended to encourage courts to ensure that the least culpable offenders, such as those who have no proprietary interest in a fraud, receive a sentence commensurate with their own culpability without reducing sentences for leaders and organizers,” Saris said....
The Commission also made an adjustment to monetary tables to account for inflation. This goodgovernment measure derives from a methodology provided by Congress and will have an effect on both penalty and fine tables. The amendments will be transmitted to Congress by May 1, 2015. If Congress does not act to disapprove some or all of the amendments, they will go into effect November 1, 2015. More information about this process and the amendments approved today will be available on the Commission’s web site at www.ussc.gov.
At the USSC's website, one can now find this "Preliminary 'Reader-Friendly' Version of Amendments. Though "reader-friendly," the amendments themselves do not really provide a complete picture of just how much these amendments, assuming they are not disapproved by Congress, could impact guideline-sentencing ranges in future high-loss white-collar cases. In addition, and of perhaps particular interest to some currently incarcerated defendants, the Commission has to my knowledge not yet indicated in any formal documents whether, when and how it might consider making these amendment retroactive in a manner that might impact past high-loss white-collar cases.
IMPORTANT FRAUD AMENDMENT RETROACTIVITY UPDATE: A helpful colleague who was able to watch the USSC meeting and votes provided this report on the topic of the potential retroactivity of these amendments:
At the end of the hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. USSC Chair Saris asked whether anyone wanted to make such a motion and no one did. Saris then read a brief statement saying they have a statutory obligation to consider whether any amendments should be retroactive, and they had determined in this case that for these amendments that would not be appropriate.
Notably, if Congress was truly eager to help with prison-crowding problems by doing something for some notable non-violent offenders, I think Congress could provide by statutory direction either that the amendments be made retroactive in whole or in part (or it might at least direct that the Commission consider more fully whether these amendments be made retroactive in whole or in part). Also, back in 2007, when the crack guidelines were first adjusted downward slightly, the Commission did not take up the retroactivity issue until many months after it promulgated amendments lowering the guidelines. But, I suspect absent some significant advocacy by the white-collar defense bar, the die may be already permanently cast against any even partial retroactivity of these new fraud amendments.
Intriguing Sentencing Project analysis of a new analysis of state-by-state incarceration trends
The Sentencing Project has this notable little analysis of variations in incarceration trends in different states across the country. Here is the e-mail I received explaining the details:
This comparative analysis of recent changes in state and federal prison populations contextualizes the scale and timing of efforts to downsize prisons. Through customized measures for each jurisdiction — calculating declines since each jurisdiction's peak year, and increases in other states since 2008 — we assess the full impact of recent policy changes. The analysis reveals:
- While the total U.S. prison population declined by 2.4% since 2009, incarceration trends among the states have varied significantly. Two-thirds (34) of the states have experienced at least a modest decline, while one-third (16) have had continuing rises in imprisonment.
- Nine states have produced double-digit declines during this period, led by New Jersey (29% since 1999), New York (27% since 1999), and California (22% since 2006). Sixteen states, and the federal government, have had less than a 5% decline since their peak years.
- Among states with rising prison populations, five have experienced double-digit increases, led by Arkansas, with a 17% rise since 2008. While sharing in the national crime drop, these states have resisted the trend toward decarceration.
These findings reinforce the conclusion that just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, it will require ongoing changes in both policy and practice to produce substantial population reductions.
Wednesday, April 8, 2015
Notable new attacks on Senator Rand Paul from (conservative?) folks at Crime & Consequences
I often view the "who, when and how" of criticisms of political figures to be a more telling indication of the importance of a politician than the substance of the criticism. Given that perspective, and the fact that the bloggers at Crime & Consequences are among the most influential and effective advocates of "tough-on-crime" ideas and rhetoric, I find quite notable that two different C&C bloggers yesterday posted quickly these three critiques of GOP Senator Rand Paul and his efforts to become the 2016 Republican nominee for President:
The first C&C post linked above asserts that Senator Paul's criminal-justice-reform commitment "sets him apart from most Republican voters," and the last post linked above asserts that Senator Paul's statement in his Prez candidacy launch speech (basics here) reflects a stunning measure of "ignorance and stupidity." Wowsa.
I suspect most of the C&C bloggers typically cast votes in GOP primaries, and I am now pretty confident that Senator Paul should not be counting on them for support.
Prior related posts:
- What would it mean for DEA and DOJ to "defeat the Washington machine and unleash the American dream”?
- Announcing his Prez campaign, Senator Rand Paul talks up liberty and (arguably) repeal of drug laws
April 8, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack (0)
Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)
As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in. (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.) But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:
On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.
At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....
At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.
DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.
Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.
DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.
It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.
But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.
In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.
There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.
DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.
April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
The quoted portion of the title of this post is the headline of this New York Times report on the outcome of the guilt phase of the on-going capital trial of the Boston Marathon Bomber, and the preamble to that quote is my (pithy?) commentary about what this means. Here are the basics on what has happened so far and what is still forthcoming:
In the silent well of Courtroom Nine, a clerk read out the verdicts: Guilty. Guilty. Guilty. The word echoed in the courtroom as the clerk pronounced it 30 times, once for each of 30 counts.
By the end of the 25minute roll call of charges, a federal jury here had left no doubt how thoroughly it sided with the government against Dzhokhar Tsarnaev in connection with the 2013 bombings at the Boston Marathon. Mr. Tsarnaev, 21, a failing college student and the youngest child in a dispersed immigrant family, stood without expression, his arms folded in front of him, flanked by his lawyers.
The verdicts set the stage for a second, more contentious phase of the trial in which the same jury will decide whether to sentence Mr. Tsarnaev to life in prison or death....
There was little doubt that the jury would find Mr. Tsarnaev guilty of most charges; his lawyers have admitted that he had been involved in the bombings, and they put on a minimal defense, calling four witnesses who testified for five hours. The government, by contrast, called 92 witnesses over 15 days. Still, in the first phase of the trial, the defense laid the groundwork for the sentencing phase, casting their client as subordinate to his older brother, Tamerlan, and less culpable for the crimes. The defense team’s goal now is to explain mitigating factors in hopes that jurors will sentence Mr. Tsarnaev to life in prison.
After the verdict was read, the judge, George A. O’Toole Jr. of Federal District Court here, told the jurors that the case would proceed to a second, penalty phase that could begin as early as next week. He cautioned the jurors that they were still “an active jury, subject to your oath,” and to not discuss the case with anyone....
The defense hopes to present mitigating circumstances that show him as less culpable than his brother. It will flesh out details of Mr. Tsarnaev’s life and family history, which includes his forebears being expelled by Stalin from Chechnya in 1944 and ending up in Kyrgyzstan. His family settled in Cambridge, Mass., in 2002. As his parents divorced and returned to Russia, Mr. Tsarnaev, who became an American citizen on Sept. 11, 2012, fell increasingly under the sway of his older brother.
Just as defense lawyers seek to impress the jurors with the reasons they should spare Mr. Tsarnaev’s life, the prosecution will impress upon them the consequences of his murderous actions. Survivors of the blasts and the families of victims are expected to testify in this next phase, as they did in the first, this time detailing the physical and emotional effects of the bomb blasts on their lives. Others are expected to discuss how the crime gripped the Boston area in fear for five days.
This news broke as I was teaching my sentencing class this afternoon, and I predicted that defense attorneys may urge that the penalty phase of the trial not begin until May, at the earliest, partially because next week will mark the two-year anniversary of the bombing and the following week is when next Boston Marathon is schedules. I suspect the defense will contend that these realities create too much of a prejudice risk if the penalty phase starts ASAP, and I think it is possible federal prosecutors might not oppose any requested delay in order to avoid creating another possible appellate issue if the jury returns a death verdict.
Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan
Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:
A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week. U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional. The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.
Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.
The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling. "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.
Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.
Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....
The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."
The full ruling, which runs 70+ pages, is available at this link.
Larry Flynt hustles his way into Missouri litigation over lethal injection
As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:
A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.
Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.
Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.
Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....
Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....
“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.
Tuesday, April 7, 2015
"Miller V. Alabama and the Retroactivity of Proportionality Rules"
The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN. Here is the abstract:
In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors. What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided. In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not. The Supreme Court is all but certain to decide the issue in the near future.
I make two primary arguments in this Article. The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.” The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee. As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality. I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded. Proportionality rules should therefore be afforded something close to a presumption of retroactivity.
Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class. Coincidence?
Announcing his Prez campaign, Senator Rand Paul talks up liberty and (arguably) repeal of drug laws
Senator Rand Paul, the most vocal and consistent GOP voice pushing for federal criminal justice reforms, announced today that he is running from President. Here are a few excerpts from this transcript of his speech today that ought to interest sentencing fans:
This message of liberty is for all Americans, Americans from all walks of life. The message of liberty, opportunity and justice is for all Americans, whether you wear a suit, a uniform or overalls, whether you’re white or black, rich or poor....
We need to boldly proclaim our vision for America. We need to go boldly forth under the banner of liberty that clutches the Constitution in one hand and the Bill of Rights in the other....
Love of liberty pulses in my veins not because we have beautiful mountains or white sand beaches, although we do, and not because of our abundance of resources. It’s more visceral than that. Our great nation was founded upon the extraordinary notion that government should be restrained and freedom should be maximized....
I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed.
It is telling, and should be a bit disappointing to criminal-justice reformers, that Senator Paul did not make express mention in his launch speech of sentencing and criminal justice reform beyond the final sentence quoted above. Nevertheless, building off this line and also Senator Paul's past work on criminal justice reform, Vox has these two notable new pieces about what kind of reforms we might (and might not) hear about during the coming Paul campaign:
New Urban Institute report examines challenges posed by mentally ill offenders
The Urban Institute today released this significant new report titled "The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis." Here is an excerpt from the first few paragraphs of the report's executive summary (with few references omitted):
Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health. According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population. An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem. These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission. Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly. In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.
Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic. There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders. This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.
This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons. It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges. Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders....
"What’s the right way to compensate someone for decades of lost freedom?"
The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions. Here is an excerpt:
One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard. In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.” He noted, “European countries have long recognized that such indemnity is a public obligation.” But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.” It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.
There is still no consensus about the value of lost time. Missouri gives exonerees fifty dollars a day for time served, California twice that much. Massachusetts caps total compensation at half a million dollars. In Maine, the limit is three hundred thousand; in Florida, it’s two million. The variation is largely arbitrary. “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me. In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979. “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.” Most states levy taxes on payment. Twenty states have no compensation statutes at all.
Fifteen hundred and seventy-five people have been exonerated in the U.S. The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.” These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors. (The same legal principle is at issue in federal suits brought by people who have been shot by the police.) In such cases, the potential damages are unlimited. But the standard of proof is high. “Police officers have qualified immunity,” Garrett told me. “They can violate your constitutional rights — reasonably but not egregiously.”
More reflections on Prez Obama's recent commutations
Writing in Forbes, Jacob Sullum has this new commentary about last week's notable clemency news headlined "Obama Steps Up Commutations, Feeding Drug War Prisoners' Hopes." Here are excerpts:
Obama’s latest batch of commutations, which doubled his total in a single day, suggests that the president, whose clemency record during his first term was remarkably stingy, is beginning to make up for lost time. Last year the Justice Department signaled a new openness to clemency petitions, laying out criteria for the sort of applications the president wanted to see. An unnamed “senior administration official” told Yahoo News the new guidelines could result in commutations for “hundreds, perhaps thousands” of federal prisoners by the end of Obama’s second term. The president will have to pick up the pace to reach that goal. But his avowed interest in ameliorating the egregious injustices inflicted by federal drug laws seems to be more than rhetorical.
Most of the drug offenders whose sentences Obama has shortened so far, including 13 of the 22 prisoners whose petitions he granted on Tuesday, were convicted of crack cocaine offenses. There is a good reason for that: Crack sentences are especially harsh, and although Congress reduced them in 2010, it did not make the changes retroactive. That means thousands of crack offenders are still serving terms that almost everyone now agrees are too long.
The Smarter Sentencing Act, which was approved by the Senate Judiciary Committee last year but never got a floor vote, would address that problem by making the 2010 changes retroactive. The bill was reintroduced in February, but its prospects are uncertain. In the meantime, Obama has the power to bring crack sentences in line with what the law currently deems appropriate.
With an estimated 8,800 prisoners who could benefit from retroactive application of shorter crack sentences, there is plenty of room for more acts of mercy like these. But the conventional wisdom is that commutations cannot help more than a tiny percentage of those prisoners. “While Mr. Obama has pledged to make greater use of his clemency power,” The New York Times reported on Tuesday, “the White House is unlikely to make a sizable dent in the prison population. Thousands of prisoners are serving time for drug sentences under the old, stricter rules.”
It’s true that commuting thousands of sentences, as that anonymous administration official quoted by Yahoo News envisioned, would be historically unprecedented. Yet it is clearly within the president’s constitutional authority, and there is less need for a careful, case-by-case weighing of each applicant’s merits when there is already a consensus that the mandatory minimums imposed on crack offenders between 1986 and 2010 were inappropriately harsh.
But let’s not get ahead of ourselves. Despite the concerns he expressed about our excessively punitive criminal justice system while running for president, Obama issued a grand total of one commutation during his first four years in office and finished his first term with a good shot at leaving behind one of the worst clemency records in U.S. history.
Prior related posts:
- Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations
- "For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more."
Monday, April 6, 2015
What would it mean for DEA and DOJ to "defeat the Washington machine and unleash the American dream”?
The question in the title of this post is prompted by this new Politico article about the notable slogan to be used by a notable new presidential candidate. The piece is headlined "Rand Paul unveils populist, anti-establishment slogan," and here are excerpts:
Sen. Rand Paul (R-Ky.) gave POLITICO a sneak peek at the slogan he will unveil at his presidential campaign announcement on Tuesday: “Defeat the Washington machine. Unleash the American dream.” The slogan, beneath the RANDPAC logo of a torch flame, will set the tone as the senator kicks off a five-day, five-state announcement tour — starting in Kentucky and then going to New Hampshire, South Carolina, Iowa and Nevada (plus a Friday night fundraiser in Newport Beach, Calif.).
The slogan is designed to evoke populist, anti-establishment themes that would work in both the primaries and the general election. A Paul adviser said of the slogan: “You could say that is a hat tip to Hillary — a subtle contrast to Hillary. But why wouldn’t that also apply to Jeb? Or someone who has never had a [recent] job outside elected office — Scott Walker?”
Advisers say Paul’s top issues will include a flat tax, IRS reform, term limits, privacy and justice reform.
As regular readers know, Senator Rand Paul has been a leading and potent voice for federal drug war and federal sentencing reform for a number of years. The US Department of Justice is a big part of the "Washington machine," and many folks interested in marijuana legalization are looking to live the American dream of working in this new industry without fear that the Drug Enforcement Agency will come after them. Though I doubt Senator Paul will be making these federal criminal justice issues his first talking point in his coming stump speeches, I am confident and excited that he is likely to be talking more about these important federal criminal justice issues than any other presidential candidate ever has in recent decades.
"Does the Death Penalty Require Death Row? The Harm of Legislative Silence"
The title of this post is the title of this interesting new article by Marah Stith McLeod now available via SSRN. Here is the abstract:
This Article exposes two flawed assumptions about death row in leading scholarship and judicial opinions. The first flawed assumption is that death row is an inevitable consequence of a death sentence. The second flawed assumption is that prison administrators should be entrusted with the decision whether to retain death row.
The Article will show that death row cannot be justified on prison security grounds, but, contrary to the claims of some scholars, it may be justified for other punishment purposes. Using extensive state-by-state research, the Article shows that in most jurisdictions, harsh death row conditions result not from statutory commands, but from discretionary administrative policies. This Article argues that legislatures, not prison administrators, should decide whether death row is a necessary aspect of capital punishment, for two reasons. Prison administrators may not be able to assess objectively whether death row serves legitimate purposes, because of their roles in the execution process. More importantly, legislatures and not prison administrators have the duty to decide whether punishment is just.
If death row is to be tethered by law to a death sentence, then this legal tether should be drawn by statute, after public deliberation and debate, and not by administrative fiat. If legislatures conclude that the death penalty does not require death row, then they must forbid prison administrators from so augmenting the sentence for a capital crime.
Sunday, April 5, 2015
March marijuana reform madness covered at Marijuana Law, Policy and Reform
March has been a crazy-busy month for not only basketball, and my own busy schedule has prevented me from keeping up with many March marijuana reform developments here or at Marijuana Law, Policy and Reform. But a brief respite provided by a holiday weekend enables me to highlights some notable posts from ML&P which at least details some of the March marijuana reform madness:
- A New York teen dies as a consequence, arguably, of marijuana prohibition
NY Times notes Justice Kennedy's criminal justice perspective
Today's New York Times has this extended editorial effectively contextualizing recent comments by SCOTUS Justice Anthony Kennedy headlined "Justice Kennedy’s Plea to Congress." Here are excerpts:
Members of the Supreme Court rarely speak publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Anthony Kennedy and Stephen Breyer sat before a House appropriations subcommittee recently and talked about the plight of the American criminal justice system.
Justice Kennedy did not mince his words. “In many respects, I think it’s broken,” he said. It was a good reminder of the urgency of the problem, and a stark challenge to a Congress that remains unable to pass any meaningful sentencing reform, despite the introduction of multiple bipartisan bills over the past two years....
“The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government,” he said. He chastised the legal profession for being focused only on questions of guilt and innocence, and not what comes after. “We have no interest in corrections,” he said. “Nobody looks at it.”
That is not entirely fair; many lawyers and legal scholars have devoted their careers to studying the phenomenon of mass incarceration in America and to improving intolerable prison conditions. But Justice Kennedy was right that all too often decisions about sentencing and corrections are made without meaningful consideration of their long-term costs and benefits, or of their effect on the millions of people who spend decades behind bars. “This idea of total incarceration just isn’t working,” he said. “And it’s not humane.”...
Justice Kennedy — whose regular role as the swing vote on a closely divided court gives him tremendous power — has a mixed record on [the Eighth] amendment. Several times he has voted to uphold breathtakingly long sentences for nonviolent crimes. For example, in two 2003 cases, he joined the five-member majority that let stand sentences of 25 years to life and 50 years to life for men convicted in California of thefts totaling a few hundred dollars.
Justice Kennedy’s response to such manifestly unjust results is that fixing prison sentences is the job of lawmakers, not the courts. But that too easily absolves the justices of their constitutional responsibility. The four justices dissenting in the California cases argued that those grossly disproportionate sentences violated the Eighth Amendment.
In more recent years, Justice Kennedy has increasingly invoked the amendment in sentencing cases, as he did in writing the 2008 decision prohibiting the death penalty as a punishment for child rape, and in 2010 and 2012 when he voted to bar sentences of life without parole for juveniles in most circumstances. He also relied on it in a 2011 decision ordering California to reduce overcrowding in its prisons, a condition that threatened inmates’ physical and mental health.
Justice Breyer, who before joining the court helped design the modern federal sentencing guidelines in the 1980s, told the committee of his own concerns about the justice system, and in particular was sharply critical of mandatory minimum sentences. Such sentences, he told the representatives, are “a terrible idea.”
The justices were right to lay these issues directly at Congress’s door. They can accomplish only so much on their own. Meanwhile, states from Texas to California to New York to Mississippi have been reforming their prisons and their sentencing laws for several years now, with overwhelmingly positive results. Now it is Congress’s turn to reform the unjustly harsh and ineffective sentencing laws it passed in the first place.
Prior related post:
Saturday, April 4, 2015
In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
With respect to sentencing policy and procedure, I frequently disagree with the current Chair of the Senate Judiciary Committee, Charles Grassley. But on the topic of federal court transparency, I surmise that Senator Grassley and I have very similar views as evidence by this new National Law Journal op-ed penned by the Senator. The piece is headlined "Legislation Allowing Cameras in the Courtroom More Important Than Ever, and here are excerpts:
In [the Boston Bombing] high-profile case and countless others, the mechanics of our criminal justice system work day in and day out to provide equal justice under the law. Before a jury of peers, prosecutors make the government's case on behalf of the people, and the defense works to give the accused a fair trial. America's system of justice, including our bedrock constitutional principles guaranteeing due process, a fair and speedy trial, and the right to counsel, is a tangible right of citizenship that too often goes unnoticed. That's because a majority of Americans aren't able to look under the hood to see it — at least not in federal courts, which ban cameras from their courtrooms.
The federal trial in Boston carries significant public interest. And yet, the ban on cameras disallows the public to bear witness to the public proceeding. Courtroom sketches and tweets from reporters arguably don't do justice for most people, especially those who have a keen interest to see justice served.
In this day and age when the American public is hard-wired to access what they want to see, when they want to see it, it's hard to square the injustice of essentially banning broad civic engagement from our judicial system by banning cameras from the federal courtroom.
Blockbuster trials certainly generate a lot of attention. They renew interest in something I've been working to achieve for nearly two decades. And that is to unlock the federal courtroom door to cameras. As a co-equal branch of the federal government, the federal judiciary serves a fundamental function in our system of self-government. It alone interprets the constitutionality of laws passed by Congress and managed by the executive branch. Although removed from electoral politics by constitutional design, the federal judiciary and Article III judges are not part of a royal class or monarchy. The federal judiciary is the custodian of constitutional rights and providing equal justice under the law. If anything, the federal judiciary ought to be the first to throw open the shutters to bring this extraordinary branch of government to life for ordinary Americans.
As a longtime crusader for more transparency, I've worked to spread sunshine through the halls of the federal government. Transparency, and the accountability that comes with it, renews credibility in our institutions of government and strengthens our free and open society. The same goes for civic engagement. Allowing courtroom proceedings to be broadcast would give more citizens an opportunity to develop a better appreciation for the federal judiciary and how the wheels of justice serve the public good.
With very few exceptions, the public's business ought to be public. Period. My leadership on this issue has prompted a few steps in the right direction, such as the adoption of pilot programs to allow cameras into some federal courts. The most recent program was launched in 2011 and includes 14 federal trial courts. So far, the sky has not fallen and the program will wrap up this summer. The courts will report back to Congress next year.
Each of the 50 states allows some level of camera access in their courtrooms. As far as I know, the recording and broadcasting of state trials haven't turned the carriage of justice into a pumpkin. To me, it's a miscarriage of justice that the 20th century courtroom camera ban still exists in the 21st century at the federal level....
[M]y bipartisan bill would allow the presiding judge discretion to protect the privacy of witnesses and private conversations among clients, lawyers and the judge. It prohibits the televising of jurors and includes measures to protect due process rights. The bipartisan verdict on this issue exceeds reasonable doubt. Allowing cameras into the federal courtroom would foster better civic engagement with our courts of law and, ultimately, strengthen the court of public opinion about the integrity of our judicial system in American society.
The burden of proof is clear. It's time to lift this arbitrary barrier to transparency. Let's end the camera ban and raise the bar on good government.
I could not agree more strongly with this forceful assertion by Senator Grassley: "With very few exceptions, the public's business ought to be public. Period." Now I just wish Senator Grassley would come to understand that his righteous commitment to transparency and accountability in the federal criminal justice system is deeply undermined by his steadfast support for federal mandatory minimum sentencing statutes and the extraordinary hidden power they place in the hands of unelected federal prosecutors.
Existing federal mandatory minimum statutes enable federal prosecutors to make profoundly consequential sentencing decision behind closed doors without any explanation, transparency or accountability. The US Sentencing Commission and others have frequently documented the profound sentencing impact of the hidden charging and bargaining decisions made by federal prosecutors using mandatory minimum sentencing provision. It is near impossible to even know what decisions are being made by prosecutors in the use of mandatory minimum sentencing provisions, let alone to assess effectively the legitimacy of the factors employed by prosecutors in their charging and bargaining decisions, because prosecutors need never explain or justify these sentencing decisions in any way.
My general disaffinity for federal mandatory minimum sentencing statutes is deeply based in my strong belief that "the public's business ought to be public." Because it seems Senator Grassley is truly and deeply committed to the values of transparency and accountability in the federal criminal justice system, I hope he will at some point come to understand how his support for federal mandatory minimums problematically disserve these critical values.
"'Revenge Porn' Defendant Sentenced to 18 Years"
The title of this post is the headline of this local California article reporting on a first-of-its-kind sentencing that was completed yesterday in state court. Here are the details:
A San Diego man convicted of identity theft and extortion after posting more than 10,000 sexually explicit photos of women to his so-called "revenge porn" website was sentenced on Friday to 18 years behind bars.
The sentencing of Kevin Bollaert ended an all-day hearing where a number of victims told of the humiliation inflicted by his website. Bollaert burst into tears as he listened to testimony from his mother and victims.
The sentence was at the high end of the range; Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. Considering credits for good behavior, Bollaert could be eligible for parole after 10 years, the judge noted. Bollaert also must pay $10,000 in restitution.
It was the first case of its type in the United States, and California was the first state to prosecute someone for posting humiliating pictures online. Bollaert was convicted of 27 counts of identity theft and extortion in connection to the thousands of photos posted online. Once they were published, Bollaert would then demand hundreds of dollars from individuals to remove their photos through a second website he owned.
Prosecutors called Bollaert "vindictive" and claimed he took pleasure out of hurting his female victims with the internet being his "tool of destruction."...
The case centered on a now defunct website called YouGotPosted.com, created by Bollaert so ex-husbands and ex-boyfriends could submit embarrassing photos of victims for revenge. The photos also linked to victims’ social media accounts.
Prosecutors say those who wanted to get the pictures taken down were redirected to another one of Bollaert's sites, ChangeMyReputation.com. There, the victims were charged $300 to $350 to have their photos removed.
State law prohibits anyone from putting identifiable nude photos online after a breakup, punishable with $1,000 or six months in jail.
Friday, April 3, 2015
Notable nomenclature for naming the "liberty disabled"
This new piece from The Marshall Project reports on the results of an interesting inquiry about what to call those who are serving time. The piece is headlined "Inmate. Prisoner. Other. Discussed. What to call incarcerated people: Your feedback." Here is how it starts:
We received more than 200 responses to our callout asking the best way to refer to people behind bars. Of the options we offered, 38 percent preferred “incarcerated person,” 23 percent liked “prisoner” and nearly 10 percent supported use of the word inmate. Thirty percent selected “other” (“person in prison,” “man or woman,” “the person’s name.”)
Personally, I kind of like "liberty disabled" or "unwillingly caged" or "long-term guest at the graybar hotel." Well, actually, this is best I could come up with in an effort to add some levity at the end of a long week. I welcome and encourage readers to use the comments to have some (inappropriate?) fun with this name game.
AG-nominee Loretta Lynch has votes for confirmation, but is still waiting for a confirmation vote
This new Politico article, headlined "Mark Kirk will back Loretta Lynch, assuring confirmation," reveals that enough GOP Senators have now indicated their support for confirmation of Prez Obama's selected replacement for Attorney General Eric Holder. Here are the details:
Attorney general nominee Loretta Lynch won’t need Vice President Joe Biden’s vote after all. Illinois Sen. Mark Kirk, who was complimentary of Lynch after meeting with her last month, said at a Thursday event in Chicago that he would vote to confirm her.
He becomes the fifth Republican to publicly support Lynch, and with all 46 Senate Democrats expected to back her nomination, Lynch now has the votes to be confirmed without Biden coming to the Capitol to break a tie....
Just a few hours earlier, aides to indicted Sen. Robert Menendez said the embattled New Jersey Democrat will also support Lynch’s nomination to be the nation’s top law enforcement official. That means Lynch almost surely has the 51 votes necessary to win confirmation.
Lynch may be able to cobble together a few more votes, with several undecided senators remaining like Rob Portman of Ohio, Lisa Murkowski of Alaska and Kelly Ayotte of New Hampshire, all like Kirk up for reelection next year. But there’s still no resolution to an abortion dispute over a sex trafficking bill that Senate Majority Leader Mitch McConnell (R-Ky.) says must first be resolved before Lynch’s nomination comes to the floor.
Senators and aides in both parties have been discussing a way forward on the trafficking bill for weeks, though no resolution is expected until the Senate reconvenes after Easter recess on April 13.
I surmise that current Attorney General Eric Holder has kept a fairly low profile since he announced his plans to resign in the hope that his actions would not slow the confirmation of his replacement. But I have long thought that the surest way to get Holder's replacement confirmed would be for Holder himself to be even more active, not more passive, so that the Republicans in control of the Senate would have a reason to get him out of his office.
Should age matter at sentencing of elderly child molester?
The question in the title of this post is prompted by this local article headlined "Sentencing delayed for 89-year-old child molester in Santa Cruz County." Here are excerpts:
An 89-year-old Felton man is expected to be sentenced in May for molesting a girl younger than 9, but her supporters fear that his advanced age might play a role in a reduced sentence.
Thursday, Santa Cruz County Superior Judge Stephen Siegel delayed a sentencing for Eric Frank Greene, who already pleaded no contest to a felony charge of lewd acts with a minor. The crimes took place in 2004.... Prosecutor Rafael Vazquez said he does not believe there are other victims.
Greene faces a wide range of sentences, from probation to up to eight years in prison. “I haven’t made an ultimate decision, but I am contemplating probation,” Siegel said in court Thursday.
More than 15 supporters of the victim attended the hearing, and Siegel said he received a folder full of letters about the case from many of them Wednesday that he needed to review. Because probation is his indicated sentence, the law requires Greene to be evaluated by a psychologist and by County Probation leaders to see if he would benefit from probation....
Greene, who has no criminal record in Santa Cruz County, remained out of jail. He said in court that he has severe hearing problems, but he walked without a cane or other aid and appeared in good health.
Vazquez said outside court that Greene caused ongoing psychological harm to the victim. “It doesn’t matter that he’s that old,” Vazquez said of Greene outside court. “The fact is that he’s committed this egregious act. They want him to be held accountable just like any other person.”
Thursday, April 2, 2015
Amnesty International reports on death penalty administration around the world
Via this webpage, Amnesty International provides a report in multiple languages on what it can confirm about the use of the death penalty throughout the world in 2014. This AI blog posting, headlined "Death Penalty: 607 executions – the story behind the numbers," provides some highlights from the report and some backstory:
The numbers behind our latest overview of the global use of the death penalty, released today, tell a chilling story: 607 people were executed in 22 countries and at least 2,466 men and women were sentenced to death in 55 countries in 2014 alone. But, alarming as they are, the figures paint a partial picture of the true extent to which people are hanged, shot or given the lethal injection across the world.
The reality is likely to be much gloomier but many governments refuse to come clean about how many people they kill each year. In countries such as Eritrea, Malaysia, North Korea and Syria, very little information about the use of the death penalty is available due to restrictive state practice or political instability.
In others, such as Japan, executions are carried out without notice, and prisoners are left waiting on death row every day wondering if it will be their last. In Belarus, the only country in Europe to still use the death penalty, family members of executed prisoners usually only find out the fate of their loved ones when they visit them at the prison only to be told their relative is no longer there.
China, the country believed to execute more individuals than the rest of the world put together, considers information about the death penalty a “state secret”, just like Vietnam. The Chinese authorities have claimed that the number of executions in the country has decreased since the Supreme People’s Court began reviewing all death penalty cases in 2007. Unfortunately, this claim is impossible to corroborate....
That is the “glass half empty”. But the story does not end there. Despite the alarming number of people sentenced to death and executed, most of the world is moving in the right direction - away from the ultimate punishment.
In 2014, the number of recorded executions dropped by almost 22% in comparison to 2013. Fewer executions were recorded in all regions, except Europe and Central Asia, in 2014 than in 2013.
In 1945, when the United Nations was founded, only eight countries had abolished the death penalty. Today 140 states are abolitionist in law or practice.
You be the judge: what state sentence for unstable 1% whose reckless driving killed young family?
This AP story from Vermont, headlined "Victims' Family at Exec's Crash Sentencing: You're Heartless," reports on the first day of a dynamic sentencing hearing in a very sad case. Here are the details:
Family members of a Vermont couple killed in a car crash were unflinching during a sentencing hearing Wednesday as they poured out their anger toward a New Hampshire man who admitted causing the wreck, which also killed their unborn fetus.
Prosecutors have said Robert Dellinger told investigators he was trying to kill himself in December 2013 when he drove his pickup truck across an Interstate 89 median and smashed into an SUV carrying 24-year-old Amanda Murphy, who was 8 months pregnant, and her fiance, 29-year-old Jason Timmons.
The Valley News of West Lebanon reported that relatives of Murphy and Timmons tore into Dellinger during the first of the two-day sentencing hearing. "I have been robbed and violated. I will never see or touch my child ever again," the newspaper quoted Timmons' mother, Debbie Blanchard, as saying, reporting that she fought back tears. "How could you be so heartless? You still have a family; you have taken mine from me."
Dellinger appeared to be deeply remorseful during the hearing, the newspaper reported. "You have my deepest, most heartfelt apology, condolences and remorse for your loss. I am so sorry," the 54-year-old Dellinger said through sobs. "My guilt and remorse will be with me forever. I ask for your forgiveness, and I pray for your healing."
Dellinger, of Sunapee, New Hampshire, was a senior vice president and chief financial officer at PPG Industries Inc. when he left in 2011 because of health problems. He also held high-level posts at Sprint Corp., Delphi Corp. and General Electric Co. He pleaded guilty in February to negligent homicide for the deaths of the couple, who were from Wilder, Vermont, and to assault for the death of the fetus. He faces 12 to 24 years in prison when sentencing resumes Thursday....
Defense lawyers have said Dellinger was suffering from delirium due to a "toxic regime" of prescription medications for multiple sclerosis and depression. In asking for a shorter sentence, they also contend he was suffering from withdrawal of a sleeping aid. Attorney Steven Gordon wrote in a sentencing brief they now know "a medical event" was the main cause "of this accident."
Dellinger has been jailed since his arrest in December. His lawyers want a sentence that would see him serve only about eight months in prison after being given credit for time already served.
Investigators say Dellinger told them that on the day of the accident he "had a disagreement with his wife and went to Vermont to drive around. He said he was very depressed and gloomy and wanted to have a car wreck and kill himself." On Wednesday, Dellinger told the court: "I have never been suicidal."
Assistant Attorney General Geoffrey Ward said in court that Dellinger's truck reached 101 mph in the seconds before the crash and was going 87 mph one second before he hit the SUV. His truck sheared off the top of the SUV. The medical examiner's report compared the injuries suffered by Murphy and Timmons to those of plane crash victims. Dellinger suffered cuts and bruises.
Wednesday, April 1, 2015
"For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more."
In one day, Obama commuted almost as many sentences as Reagan and George W. Bush did in 16 years.
What we are glimpsing like a gorilla in the mist might be something so rare it has not been spotted in four decades: the principled use of the pardon power in a systemic way to address injustice. It could even be the reclaiming of a core Constitutional imperative that was squandered by President Clinton in his last days in office, and largely ignored by President Reagan and both Bushes. Or maybe not; it all depends on what comes next....
The president has most of the work ahead of him if he is really to reclaim the pardon power from its long period of disrepute. Tuesday’s 22 men and women are largely symbolic, representing the thousands like them who remain in prison.
Perhaps most importantly, the president should reform the pardon process so that it doesn’t need special initiatives like the Clemency Project 2014. Like Presidents Bush and Clinton before him, Obama complained of not getting good cases. The problem is the system that delivers those cases to his desk, which winds its way through the Department of Justice and the White House, navigating as many as seven levels of review....
[M]any of the most efficient [state] systems use a clemency board to make recommendations directly to the executive. Establishing such a board cuts the levels of review down to just a few and opens up other opportunities. For example, such a board could compile and analyze data on those released and their success, providing guidance for future cases.
The fact that 22 clemencies is historic says more about the state of federal clemency than it does about this toe-in-the-water action, given that there are over 200,000 people in federal prisons across the United States. At best, it is a symbolic gesture, and the coming reality will be good for the prisoners released, good for the communities they return to, and good for a living Constitution in need of balance.
Prior related post:
"A Republican Governor Is Leading the Country's Most Successful Prison Reform"
The title of this post is the headline of this notable new piece from The New Republic. Here are excerpts:
During his second inaugural address this past January, Georgia Governor Nathan Deal shared the story of Sean Walker. After serving 12 years of a life sentence for murder, Walker was paroled in 2005 and began working in the governor’s mansion while in a state transitional center. At the time of Deal’s address, Walker was working for Goodwill as a banquet catering sales coordinator and was nominated for Goodwill International Employee of the Year. As of January, Walker was planning to take college courses with the hope of becoming a counselor.
Deal, who got to know Walker at the governor’s mansion, shared the story to underscore his own “message to those in our prison system and to their families: If you pay your dues to society, if you take advantage of the opportunities to better yourself, if you discipline yourself so that you can regain your freedom and live by the rules of society, you will be given the chance to reclaim your life.” He continued, “I intend for Georgia to continue leading the nation with meaningful justice reform.”
That last sentence could seem at best like optimism, and at worst like hyperbole. However, one could reasonably argue that Georgia is doing more to reform its criminal justice system than any other state in the country — from sentencing to felon employment after release to juvenile detention.
Over the last four years, mandatory sentencing minimums have been modified, and judges’ discretion in sentencing has been expanded. The adult prison population has been given enhanced access to educational resources, including a program that enables two charter schools in the state to go into prisons to teach inmates, and those participating earn a high school diploma instead of a GED. (Studies suggest that some recipients of a GED tend not to fare any better in employment prospects than high school dropouts do.)
In addition, inmates with felonies applying to work for the state no longer have to check a box on their job applications that discloses their criminal histories and would often disqualify them from being considered for a job from the outset. “We banned the box,” said Deal, “It is not going to affect them getting an interview.” The state has also invested $17 million into measures aimed at reducing recidivism and rehabilitating low-risk, nonviolent offenders — including expanding accountability courts like those for drug use and DUIs, and funding community-based programs that have already proven to be more cost-effective than a prison sentence and are designed to reduce crime in the long run....
Some, like Vikrant Reddy, a senior policy analyst at Right on Crime and at the Texas Public Policy Foundation’s Center for Effective Justice, label Georgia’s criminal justice reforms conservative because they are saving the state millions, putting them in line with conservative fiscal values. Others, like Alison Holcomb, the national director of ACLU’s Campaign to End Mass Incarceration, call the reforms expansive for their holistic agenda—with improving educational and re-entry opportunities for inmates at the top of the list. The reforms have been called innovative, though some argue that it isn’t the reform initiatives themselves, so much as the way they’re being applied together that is unprecedented.
Should the Supreme Court reflect the country's "disenchantment with capital punishment"?
The question in the title of this post is prompted by this notable new New York Times commentary by Linda Greenhouse headlined "The Supreme Court's Death Trap." Here are excerpts:
You wouldn’t know it from the death penalty proceeding about to take place in the Boston Marathon case, or from Utah’s reauthorization of the firing squad, or the spate of botched lethal injections, but capital punishment in the United States is becoming vestigial.
The number of death sentences imposed last year, 72, was the lowest in 40 years. The number of executions, 35, was the lowest since 1994, less than half the modern peak of 98, reached in 1999. Seven states, the fewest in 25 years, carried out executions.
California has the country’s biggest death row, with more than 700 inmates. Many more of them die of natural causes — two since mid-March — than by execution. Last July, a federal district judge, Cormac J. Carney, concluding that California’s death penalty had become “dysfunctional,” “random” and devoid of “penological purpose,” declared it unconstitutional; the state is appealing.
But if there’s one place that seems to stand apart from the tide of disenchantment with capital punishment, it’s the Supreme Court....
Adam Liptak, the Supreme Court correspondent for The Times, has highlighted the disturbing way the court handled a challenge to Missouri’s lethal-injection protocol back in January: first, over four dissenting votes, permitting the state to execute Charles F. Warner, one of four inmates who had filed appeals, only to agree a week later to hear the appeals of three identically situated inmates. The court then granted stays of execution to the three and will hear their case, Glossip v. Gross, on April 29....
A Texas death-row inmate, Lester Leroy Bower Jr., managed to win a stay of execution in February to enable the justices to decide whether to hear his challenge to the state courts’ handling of his mitigating evidence. Last week, the Supreme Court turned down his appeal, thus dissolving the stay, over the dissenting votes of Justices Breyer, Ginsburg and Sotomayor; Justice Breyer, not given to overstatement, wrote that “the error here is glaring.” Since at least two others must have voted for the stay, where were they? Perhaps after carefully considering the merits of Mr. Bower’s appeal, they found itinsufficient. Fair enough. But shouldn’t they have felt moved to tell us something — anything?
An argument on Monday was simply dispiriting. A Louisiana inmate, Kevan Brumfield, with an I.Q. of 75, was sentenced to death before the Atkins decision barred the execution of mentally disabled people. At trial, his lawyer had presented some evidence of his disability, but not in the detail a court would expect in the post-Atkins world. The question for the justices in Brumfield v. Cain was whether he should have received a new hearing. The obvious answer would seem to be: Of course, why on earth not? But the justices seemed more concerned about whether Mr. Brumfield and his lawyer were trying to game the system.
In 2008, two years before he retired, Justice John Paul Stevens renounced the death penalty. His nuanced opinion in Baze v. Rees rewards rereading. No current justice has taken up the call. I’m not so naïve as to predict that a majority of the Supreme Court will declare the death penalty unconstitutional anytime soon. But the voice of even one member of the court could set a clarifying marker to which others would have to respond. And it just might over time point the way to freeing the court — and the rest of us — from the machinery of death.
"Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism"
The title of this post is the headline of this notable new article by always interesting Christopher Slobogin. Here is the abstract:
Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice — to wit, retributivism and adversarialism. This article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system where retribution is no longer the lodestar of criminal punishment, and where party-control of the process is no longer the desideratum of adjudication.
If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.
Tuesday, March 31, 2015
Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations
Long-time readers know I have long complained about Prez Obama's failure to make regular use of his clemency power, and I have been especially critical over the last year when we have heard the President and his agents "talk the talk" a lot about a new clemency initiative, but not actually "walk the walk" by granting relief in a significant number of cases. But today, as reported in this USA Today article, may finally mark the start of a truly new clemency era:
President Obama commuted the sentences of 22 convicted federal prisoners Tuesday, shortening their sentences for drug-related crimes. Eight of the prisoners who will have their sentences reduced were serving life sentences. All but one of the 22 will be released on July 28.
The White House said Obama made the move in order to grant to older prisoners the same leniency that would be given to people convicted of the same crimes today. "Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society," White House Counsel Neil Eggleston said in a statement. "Because many were convicted under an outdated sentencing regime, they served years—in some cases more than a decade—longer than individuals convicted today of the same crime."
In issuing the commutations Tuesday, Obama has more than doubled the number he's granted in his presidency. Before Tuesday, he had issued just 21 and denied 782 commutations in his more than six years. It was the most commutations issued by a president in a single day since President Clinton issued 150 pardons and 40 commutations on his last day in office.
And it could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year, at least two of which were granted commutations Tuesday, according to the Justice Department....
Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around. "Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."
Of the 22 commutations granted Tuesday, 17 were for possession or trafficking in cocaine. The others were for methamphetamine, heroin and marijuana. One was also convicted of a gun charge in addition to cocaine possession. Their convictions cover a 14-year span from 1992 to 2006.
A list of the 22 individuals receiving commutations today is available via this official White House press release, and the White House blog has this new entry by Neil Eggleston titled "Upholding the Principle of Fairness in Our Criminal Justice System Through Clemency." Here is an excerpt from that entry:
Building on his commitment to address instances of unfairness in sentencing, President Obama granted 22 commutations today to individuals serving time in federal prison. Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society. Because many were convicted under an outdated sentencing regime, they served years — in some cases more than a decade — longer than individuals convicted today of the same crime.
In total, the 22 commutations granted today underscore the President’s commitment to using all the tools at his disposal to bring greater fairness and equity to our justice system. Further, they demonstrate how exercising this important authority can remedy imbalances and rectify errors in sentencing. Added to his prior 21 commutations, the President has now granted 43 commutations total. To put President Obama’s actions in context, President George W. Bush commuted 11 sentences in his eight years in office....
While today’s announcement represents important progress, there’s more work ahead. The Administration will continue to work to review thoroughly all petitions for clemency. And, while commutation is an important tool for those seeking justice and fairness in our penal system, it is nearly always an option of last resort, coming after a lengthy court process and many years behind bars. That is why President Obama is committed to working with Democrats and Republicans on sensible reforms to our criminal justice system that aim to give judges more discretion over mandatory minimum sentencing. As the Department of Justice has noted, mandatory minimum sentences have at times resulted in harsher penalties for non-violent drug offenders than many violent offenders and are not necessary for prosecutions at this level.
Already, one significant reform has become law. In 2010, the President signed the Fair Sentencing Act, which reduced the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum penalties. The President is encouraged by the bipartisan support for improving our criminal justice system, including promising legislation that would implement front-end changes in sentencing. In addition, he supports bipartisan efforts to provide back-end support through better education and job training for those currently incarcerated and to reform of our juvenile justice system to build on the significant reductions in the number of youth being held in secure facilities.
Can we save thousands of innocent lives from serious crime through . . . a tax increase?
Those who vigorously oppose various modern sentencing reform proposals are often quick to suggest that any efforts to save taxpayer monies by reducing excessive prison terms could with the potential costs of increased crime and increased victimization. I tend to resist (as does most sophisticated research) the assertion that there is a zero-sum reality to incarceration rates and crime rates, but I do share a concern that any budget-driven criminal justice reforms need to keep a close watch on what evidence and research suggests is the public safety impact of reform.
With those thoughts always in mind, I am especially encouraged by this report about new research suggestion we might be able to successfully reduce serious crimes and innocent victimization through a tax increase that could be good for state budgets. The report is titled "Researchers see significant reduction in fatal car crashes after an increase in alcohol taxes," and here are the highlights:
Increasing state alcohol taxes could prevent thousands of deaths a year from car crashes, say University of Florida Health researchers, who found alcohol-related motor vehicle crashes decreased after taxes on beer, wine and spirits went up in Illinois.
A team of UF Health researchers discovered that fatal alcohol-related car crashes in Illinois declined 26 percent after a 2009 increase in alcohol tax. The decrease was even more marked for young people, at 37 percent. The reduction was similar for crashes involving alcohol-impaired drivers and extremely drunken drivers, at 22 and 25 percent, respectively. The study was released online in the American Journal of Public Health in March and will be published in a forthcoming issue.
“Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year,” said Alexander C. Wagenaar, a professor in the department of health outcomes and policy at the UF College of Medicine. “If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”
Alcohol-related motor vehicle crashes account for almost 10,000 deaths and half a million injuries every year in the United States. Alcohol is more affordable than ever, a factor researchers say has contributed to Americans’ widespread drinking and driving. Drinking more than 10 drinks per day would have cost the average person about half of his or her disposable income in 1950 compared with only 3 percent in 2011. Alcoholic beverages have become so inexpensive because alcohol tax rates have declined substantially, after taking inflation into account....
The research team defined an impaired driver as having a blood alcohol level of less than .15 percent and an extremely drunken driver as having a blood alcohol level of more than .15 percent, which translates to roughly six drinks within an hour for an average adult. To control for multiple other factors that can affect motor vehicle crash rates, such as traffic safety programs, weather and economic conditions, the researchers compared the number of alcohol-related fatal crashes in Illinois with those unrelated to alcohol during the same time period as well as alcohol-related fatal crashes in Wisconsin, which did not change its alcohol taxes. Results confirmed that the decrease in crashes was due to the tax change, not other factors.
The larger-than-expected size of the effects of this modest tax increase may be because the tax change occurred at the same time as the Great Recession -- a time when unemployment was high and personal incomes lower, according to the study. “While our study confirms what dozens of earlier studies have found -- that an increase in alcohol taxes reduces drinking and reduces alcohol-related health problems, what is unique is that we identified that alcohol taxes do in fact impact the whole range of drinking drivers, including extremely drunk drivers,” Wagenaar said. “This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer.”
Another pharmacy group expresses opposition to involvement in executions
As noted in this prior post, last week a trade group for compound pharmacists has discouraged its members from preparing or dispensing drugs for executions. Now, as reported in this new NBC News article, the "American Pharmacists Association voted Monday to oppose participation in executions, declaring that helping put prisoners to death violates the goals and oath of the profession." Here is more about these developments:
Neither policy is binding, but they could dissuade specialty pharmacists — now the only source for lethal injections in many states — from selling their products to prisons for executions. "It adds to the difficulty," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment. "It's unfortunate that groups such as this would allow themselves to be dragged into a political dispute."
But Corinna Lain, a professor at the Richmond School of Law, said it has more to do with the bottom line. With just 35 executions across the country last year, lethal injections are not a big profit center. "The cost of these drugs has skyrocketed from something like $83 a vial to $1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's total sales. And look at the downside — the negative publicity is tremendous. Executions are bad for business for compounding pharmacies for the same reason they were bad for business for the pharmaceutical companies."...
Scheidgger said he hopes that at least a few compounding pharmacies will buck the trade groups and continue to sell their products to prisons until a new source is found. "I expect states will eventually find a supply and this problem will go away," he said.
Monday, March 30, 2015
"Monitoring Youth: The Collision of Rights and Rehabilitation"
The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:
A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.
This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts. After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.
Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny. The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits. This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
March 30, 2015 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack (0)
Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement
In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here). The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."
But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring. Here are key passages from the ruling in Grady:
Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender. See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes. He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....
The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling]. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents....
[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does.... The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.
That conclusion, however, does not decide the ultimate question of the program’s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.
SCOTUS grants cert on collection of capital cases from Kansas
The state of Kansas has not carried out a death sentence since 1965. But even though the Sunflower state has not truly utilized its system of capital punishment for a full half-century, the Supreme Court apparently believes it is important to review three capital cases from the state as evidenced by its cert grants this morning in Kansas v. Jonathan Carr, Kansas v. Reginald Carr and Kansas v. Sidney Gleason.
This AP article provides this summary of the underlying crimes and defendants whose cases are now before the Justices:
The Supreme Court agreed Monday to hear Kansas' appeal to reinstate death sentences for two brothers in the fatal shootings of four people and for another man convicted of killing a couple.
The justices said they will review rulings by the Kansas Supreme Court that threw out the sentences of Jonathan and Reginald Carr and Sidney Gleason. The Kansas court hasn't upheld a death sentence since the state enacted a new capital punishment law in 1994. The state's last executions, by hanging, took place in 1965.
The Carr brothers were sentenced to death for the four killings, which occurred in Wichita in December 2000 and followed dozens of other crimes, including robbery and rape. Gleason was sentenced to die over the couple's deaths, in the central Kansas town of Great Bend in February 2004.