Wednesday, February 26, 2014

"The Supreme Court and the Rehabilitative Ideal"

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

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual.  The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding.  Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.

My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history.  The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform.  Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement.  Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming.  At best, the state must get out of the way.  Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.

February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Mizzou completes fourth execution in last four months

While multiple states continue to have multiple problems securing the drugs needed for execution or deflecting litigation over execution protocols, Missouri has now succeeded in completing four executions in as many months.  Here are the details of the latest one, via this AP story headlined "Missouri Executions Man in '89 Rape, Killing of Teen":

A Missouri inmate was executed early Wednesday for abducting, raping and killing a Kansas City teenager as she waited for her school bus in 1989, marking the state's fourth lethal injection in as many months.

Michael Taylor, 47, was pronounced dead at 12:10 a.m. at the state prison in Bonne Terre. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that the execution drug purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.

Taylor offered no final statement, although he mouthed silent words to his parents, clergymen and other relatives who witnessed his death. As the process began, he took two deep breaths before closing his eyes for the last time. There were no obvious signs of distress.

His victim, 15-year-old Ann Harrison, was in her driveway, carrying her school books, flute and purse, when Taylor and Roderick Nunley abducted her. The men pulled her into their stolen car and drove her to a home, where they raped and fatally stabbed her as she pleaded for her life. Nunley was also sentenced to death. Ann's father and two of her uncles witnessed Taylor's execution. They declined to make a public statement.

In their appeals, Taylor's attorneys questioned Missouri's use of an unnamed compounding pharmacy to provide the execution drug, pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor's original trial attorney was so overworked that she encouraged him to plead guilty.

After using a three-drug execution method for years, Missouri switched late last year to pentobarbital. The same drug had been used in three earlier Missouri executions, and state officials said none of those inmates showed outward signs of distress. Still, attorneys for Taylor said using a drug from a compounding pharmacy, which unlike large pharmaceutical companies are not regulated by the U.S. Food and Drug Administration, runs the risk of causing pain and suffering during the execution.

The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it wouldn't supply the pentobarbital for Taylor's execution, forcing Missouri to find a new supplier. Attorney General Chris Koster's office said a new provider had been found, but Koster refused to name the pharmacy, citing the state's execution protocol that allows the manufacturer anonymity. Taylor's attorneys said use of the drug without naming the compounding pharmacy could cause the inmate pain and suffering because no one could check if the operation was legitimate and had not been accused of any violations.

Pete Edlund doesn't want to hear it. The retired Kansas City police detective led the investigation into the teenager's death. "Cruel and unusual punishment would be if we killed them the same way they killed Annie Harrison," Edlund said. "Get a damn rope, string them up, put them in the gas chamber. Whatever it takes."

February 26, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (14) | TrackBack (0)

Tuesday, February 25, 2014

Thanks to Gov. Brown, Plata, budget woes, state court rulings and/or _____, California lifers now have a real chance for parole

MadlibsThe weird "Mad-Libs" title to this post is my reaction and query in response to this notable new AP report headlined "California 'lifers' leaving prison at record pace."  Here are the details:

Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out. Gov. Jerry Brown has granted parole to a record number of inmates with life sentences since he took office in January 2011, going along with parole board decisions about 82 percent of the time.

Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.

This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.

Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers.  "This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance.  "This is a change of philosophy that can be dangerous."

The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.

Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years -- almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles.  Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population.

But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions.  The court ordered prison officials to consider more than the severity of the applicant's underlying crimes.  It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.

State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012.  In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.

Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board. Brown has allowed 82 percent of the 1,590 paroles granted by the board.

Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release....

Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years.  Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release....

The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder.  Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s.  Experts say older ex-cons are less prone to commit new crimes than younger ones.

Brown has reversed the parole board.  On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration.  One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime.  "Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."

Ernest Morgan on the other hand, is a lifer Brown did let free. Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.... "So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."

In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official. "It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."

February 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

"Semi-annual FBI Report Confirms Crime down as Gun Sales Up, Notes CCRKBA"

Regular readers know I am ever interested in every perspective concerning the great American modern crime decline. Consequently, I found notable this new press release from the Citizens Committee for the Right to Keep and Bear Arms. The press release shares the title of this post, and here are excerpts:

The FBI’s semi-annual uniform crime data for the first half of 2013 confirms once again what the firearms community already knew, that violent crime has continued to decline while gun sales have continued to climb, the Citizens Committee for the Right to Keep and Bear Arms said today.

The report, issued last week, says murders declined 6.9 percent from the first half of 2012, while aggravated assaults dropped by 6.6 percent nationwide and robberies were down 1.8 percent. Forcible rapes declined 10.6 percent from the same period in 2012 and overall, violent crime fell by 10.6 percent in non-metropolitan counties and 3.6 percent in metropolitan counties.

“This new information reinforces the notion that not only do guns save lives, their presence in the hands and homes of law-abiding citizens just might be a deterrent to crime,” observed CCRKBA Chairman Alan Gottlieb. “The National Shooting Sports Foundation has been reporting a steady increase in firearm sales for the past few years. Taken as a whole, one cannot help but conclude that the predictions from gun prohibitionists that more guns leads to more crime have been consistently wrong.”

Gottlieb said the tired argument from the anti-gun lobby that more firearms in the hands of private citizens would result in sharp increases in violence have run out of traction. Not only has the decline in crime corresponded with an increase in gun sales, it also coincides with a steady rise in the number of citizens obtaining concealed carry licenses and permits, he noted.

“The FBI report says burglaries and auto theft have also decreased,” Gottlieb said, “and it is impossible to look at this pattern and not suggest that increased gun ownership just might be one contributing factor. Gun prohibitionists would, of course, dismiss that suggestion as poppycock, but you can bet your life savings that if the data was reversed, and violent crime had risen, the gun control lobby would be rushing to every available microphone declaring that guns were to blame.

Some related posts on modern crime rates: 

February 25, 2014 in Data on sentencing, National and State Crime Data | Permalink | Comments (3) | TrackBack (0)

Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General

In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:

In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety.  Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period.  And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.

From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources.  And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.

That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.

Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases.  And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.

This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end.  With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society.  As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety.  I’ve made the same request of high-ranking officials across the federal government.  And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.

Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines.  I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature.  It is counterproductive to our efforts to improve reentry and reduce recidivism.  And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.

I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue.  And I encourage each of you to consider and take up this fight in your home states.

February 25, 2014 in Collateral consequences, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

"Compound Sentence: States keep mum on where lethal injection drugs are made"

The title of this post is the headline of this article in the March 2014 issue of the ABA Journal.  Here are excerpts:

Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions].  “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says.  “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”

Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.”  The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.

The same issues are playing out throughout the country.  Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center.  Of those, Missouri and South Dakota have carried out executions with compounded drugs.  Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.

Other states have revised their protocols and are no longer using pentobarbital.  Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.

At the same time, state officials often refuse to provide information about lethal injections.  In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret.  Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.

Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death.  “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.

But groups that support the death penalty say many of these challenges are meritless.  “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif.  “There isn’t a good argument that the use of that method is in any way cruel.”

Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret.  “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”

February 25, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack (0)

Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record

New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record.  Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect: 

[W]hen the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system.  It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....

In his first term Obama did not make this a signature issue; he rarely mentioned the subject....

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive.  The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row.  However the overall downsizing is largely thanks to California and a handful of other states.  In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it.  And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered.  That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week.  “This is, I think, going to be seen as a defining legacy for this administration.”  I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking

This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.

I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.

And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).

February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure

The Supreme Court handed down an opinion this morning in Kaley v. US, No. 12-464 (S. Ct. Feb 25, 2014) (available here), which is notable for its holding and the groups of Justices joining together.  Here is the start of the opinion for the Court, which was authored by Justice Kagan and joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction.  In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.”  And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure's legality under Monsanto.  The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged.  We hold they have no right to relitigate that finding.

Here is the start of the lengthy dissent in Kaley  which was authored by Chief Justice Roberts and joined by Justices Breyer and Sotomayor:

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer.  That ruling is not at issue.  But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets.  I cannot subscribe to that holding and respectfully dissent.

The Court also handed another criminal defendant another 6-3 loss today in a Fourth Amendment case from California. Here is how the majority opinion, per Justice Alito, gets started in Fernandez v. California, No. 12-7822 (S. Ct. Feb. 25, 2014) (available here):

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants1 consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

February 25, 2014 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

"The Banality of Wrongful Executions"

The title of this post is the title of this new piece authored by Brandon Garrett reviewing a number of recent new criminal justice books. Available via SSRN, here is the abstract:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

February 25, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (25) | TrackBack (0)

Monday, February 24, 2014

Attention 2016 Prez candidates: new poll says 87% in Ohio support use of medical marijuana

One of many reasons I thought Colorado's 2012 vote to legalize marijuana was such a big deal is because the Mile High state is something of a swing state in the national race for President and thus all 2016 candidate for Prez will need to have a somewhat more refined message on marijuana come the next national election than other recent candidates.  Additional reasons why would-be candidates for the Oval Office need to start working on their pot platform has emerged today via this new about a new poll from the ultimate swing state:

Ohio voters overwhelmingly approve of medicinal marijuana and narrowly support same-sex marriage, according to a poll released Monday.

A Quinnipiac University poll of Ohio voters found 87 percent support the use of medical marijuana while only 11 percent oppose. Ohio voters also narrowly approve of allowing adults to possess small amounts of the drug for personal use -- 51 percent in favor, 44 percent opposed. Two medical marijuana proposals are in the works, but it's unclear whether either will collect the more-than 385,000 signatures of valid Ohio voters required to put the issue before voters in November.

Twenty states and Washington, D.C. allow for medical marijuana programs and Colorado and Washington voters gave the green light for legal recreational use in 2012. Ohio voters say Colorado's legalization is bad for the state's image, with 37 percent of those polled saying it helps the state.

Peter A. Brown, assistant director of the Quinnipiac University Polling Institute, said Ohioans' views of marijuana are complicated. "Twice as many voters think alcohol is more dangerous than marijuana, and about half the state's voters think the two are equally harmful," Brown said in a statement.

Support is strongest among voters age 18 to 29, who approve of personal marijuana use 72 percent to 25 percent, but boomers and Gen-Xers say they've tried marijuana at a higher rate than younger voters.  More than half of Ohio voters -- 55 percent -- say they've never tried marijuana.

The poll surveyed 1,370 registered Ohio voters from Feb. 12-17 on land lines and cell phones, and the poll had a margin of error of plus or minus 2.7 percentage points.

For a bunch of reasons, I think all polling numbers concerning views on marijuana are subject to lots of "noise" based on how the poll questions are posed. And, of course, at least until the 2014 mid-term elections take place, it is way too early to make too many predictions about 2016 candidates and issues. Nevertheless, these latest poll numbers from Ohio reinforce my view that the 2016 Prez campaign is sure to have a lot more serious and sophisticated discussion of federal marijuana laws, policies and practices than any other election cycle in memory.

Cross-posted at Marijuana Law, Policy and Reform

February 24, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (6) | TrackBack (0)

Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant

Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:

In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.  Id., at 687–688, 694.  Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance.  We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688.  Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....

The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”  An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690.  We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.  The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.

Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.

February 24, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (42) | TrackBack (0)

NY Times debates "Visiting Prisoners, Without Visiting Prison"

The Room for Debate section of the New York Times has has this new set of notable commentaries discussing the virtues and possible vices of using video feeds for prison visition. Here is the section's set up:

The attorney general, Eric Holder, recently instructed federal prisons to treat same-sex marriages the same as opposite-sex marriages, including visitation rights for spouses. But at many prisons, family visitation is increasingly difficult and even phone calls are exorbitantly expensive.

Some prisons have instituted “video visitation” as a solution. Does that help or create new problems?

Here are the contributions, with links via the commentary titles:

February 24, 2014 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (0) | TrackBack (0)

You be the federal sentencing judge: "tough call" in sentencing former police chief

The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'."  Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:

When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...

At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.

Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.

Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."

Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.

Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."

In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."

Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.

The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....

Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.

The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.

With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "

Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."

UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."

February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack (0)

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack (0)

Is arrest of Mexican drug lord "a monumental moment in the world's war on drugs"?

The question in the title of this post is drawn from the first sentence of this CNN report headlined "3 reasons why 'El Chapo' arrest matters." Here are excerpts:

The arrest of drug kingpin Joaquin "El Chapo" Guzman is a monumental moment in the world's war on drugs....  Here are three reasons why the arrest of Guzman — now being held by Mexican authorities and sought for extradition by U.S. authorities — matters so much.

1. His legend

Chicago declared him and his use of the city as a drug-dealing hub as Public Enemy No. 1, joining bygone gangster Al Capone in that distinction.  Perhaps most importantly, El Chapo is synonymous with narco culture and its lurid glorification.  Guzman, 56, is the drug kingpin extraordinaire.

El Chapo, which means "Shorty" in Spanish, inspires American rap songs and a genre of Mexican ballads called narcocorridos.  "All I wanna be is El Chapo, Three billion dollars in pesos" is part of the chorus to a 2012 rap by Gucci Mane.

Maybe the most potent message of El Chapo's arrest is how it undermines his most audacious myth -- that he could never be caught again, unfindable in Mexico's back country.  Guzman had been caught once before by Mexican authorities, in 2001, but he escaped from a high-security Mexican prison. Lore holds that he slipped out of the prison by hiding in a laundry basket....

2. One of the world's most wanted

Guzman's drug operation is believed to have penetrated not just all of the Americas, but Europe, Australia and west Africa as well, according to the West Point report. "The United States remains the most important demand market for Sinaloa Federation products —marijuana, cocaine, and methamphetamines.  The European Union and Australia, however, have proven attractive due to the economics of price elasticity and their distance from the supply source," according to the report.

But authorities have been mounting pressure on Guzman's Sinaloa cartel in recent months. His lieutenants have been killed or captured by Mexican authorities.  Earlier police operations yielded a trove of intelligence, including cell phone and other data, a U.S. law enforcement official said. That helped Mexican authorities and U.S. Drug Enforcement Administration agents hunting Guzman gain confidence in recent weeks that they could arrest him.

"Although it's a ridiculous phrase, the world's most wanted drug lord is accurate," said Malcom Beith, author of "The Last Narco," which is about Mexico's drug war.  "There's tons of other drug lords around, but I think the Sinaloa cartel, given its growth, given its influence hemispheric and otherwise, I think that puts him on the top."

Phil Jordan, who spent three decades with the DEA and headed the agency's El Paso Intelligence Center, also characterized Guzman in superlatives.  "When you arrest the most powerful man in the Americas and in Mexico, if you talk to any cartel member, they'll say that he's more powerful than Mexican President Pena Nieto," Jordan said.  "This would be a significant blow to the overall operations not only in the Americas, but Chapo Guzman had expanded to Europe.  He was all over the place."...

3. U.S. indictments

Guzman's arrest has re-energized Mexican and U.S. lawmen who spent years tracking his cartel and yet unable to capture him — until now. The United States doesn't want to see Guzman escape again. That's why they are eager to see him extradited to the United States as soon as possible, where he is named in multiple federal drug indictments and has been on the DEA's most-wanted list.

"It is a significant arrest, provided he gets extradited immediately to the United States," Jordan told CNN.  "If he does not get extradited, then he will be allowed to escape within a period of time."  Added one U.S. official: "Now comes the hard part."  That official was referring to Guzman's extradition to the United States.

This CNN story helps me better understand why the arrest of drug kingpin Joaquin "El Chapo" Guzman is a very big news story and a significant law enforcement achievement. But I doubt many folks look back at the arrest(s) and prosecution(s) of Al Capone as a monumental moment in alcohol Prohibition, and I likewise would be surprised if this recent take-down of El Chapo is deemed monumental in the years to come as a variety of drug lords battle to take over his domain and become the next "world's most wanted drug lord."

I ask the question in the title of this post not to diminish the importance of this recent arrest nor to belittle to considerable efforts of the considerable and important law enforcement effort to capture this very bad guy.  But, like the war on crime or the war on poverty or even the war on terror, I worry that there is never a single "general" (on either side of these wars) whose arrest or death is very likely to significantly alter the enduring battles that seem destined to continue on.

February 23, 2014 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack (0)

NACDL brings FOIA lawsuit against DOJ for access to criminal discovery guide

The alphabet suit title for this post concerning this story reported here by Legal Times under the headline "Criminal Defense Group Sues DOJ Over 'Discovery Blue Book'." Here are the details:

The National Association of Criminal Defense Lawyers [Friday] sued the U.S. Department of Justice over public access to a criminal discovery "blue book" that was written after the collapse of the case against Ted Stevens.

The Justice Department last year turned down a request from the NACDL for a copy of the Federal Criminal Discovery Blue Book.  The lawsuit was filed ... in U.S. District Court for the District of Columbia.

Justice Department officials, according to the complaint, cited the book as an example of why federal legislation was unnecessary to prevent future discovery abuses among prosecutors.  During a hearing on Capitol Hill, in 2012, the Justice Department said the blue book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal," according to the NACDL complaint.

"The due process rights of the American people, and how powerful federal prosecutors have been instructed as relates to the safeguarding of those rights, is a matter of utmost Constitutional concern to the public," NACDL President Jerry Cox said in a written statement.  "The 'trust us' approach is simply unacceptable.  And it is certainly an insufficient basis upon which to resist bipartisan congressional interest in codifying prosecutors’ duty to disclose."

February 23, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack (0)

Saturday, February 22, 2014

Another weekend review of news and notes from the modern marijuana movement

I have not done a round up for posts from Marijuana Law, Policy and Reform in a few weeks, so here goes:

UPDATE: This new lengthy Washington Post piece provides some historical perspective on all the modern developments discussed above. The piece is headlined "Marijuana’s rising acceptance comes after many failures. Is it now legalization’s time?," and here are its final two paragraphs:

As the rhetorical battle continues and politicians remain cautious about speaking out on marijuana, the facts on the ground are changing fast. The Cannabis Cup, an open-air marketplace the size of two football fields in the San Bernardino Valley, featured open consumption of pot-infused sodas, candies and cookies and displays of whole marijuana plants — staged with virtually no controversy.

“Generations coming up now don’t see what the big deal is,” says Brian Wansolich, 39, wearing a white coat emblazoned with the logo of his online cannabis ratings service, Leafly. “My parents still have moral problems with it, but now they see we can tax this and get states out of trouble. It’s the American way.”

February 22, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack (0)

"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"

The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:

This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime.  Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims.  Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.

Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.

February 22, 2014 in Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Friday, February 21, 2014

Notable New Yorker piece reporting on forthcoming federal judicial sentencing patterns

A helpful reader altered me to this notable new piece about sentencing policies and practices from The New Yorker authored by Columbia Law Prof Tim Wu. The full piece ends by stressing one concern I often express about the challenge of using mandatory sentencing laws to try to deal with concerns about judicial sentencing disparity — namely "that they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges."  But the piece caught my attention late on a Friday afternoon mostly because of this discussion of some notable forthcoming research on modern federal sentencing patterns:

Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this.  A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.

The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced” — as much as eleven months, on average. The results are all statistically significant, according to Yang — and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.

Of course, all sophisticated federal sentencing practitioners know that in all cases, not just those "on the edge," the "identity of your judge might make an important difference." And I regularly tell law students that every federal defendant ought to realize from the moment he or she is subject to a federal investigation, in all cases, not just those "on the edge," the identity of the prosecutor and probation officer and defense attorney also "might make an important difference." Consequently, I am not sure Crystal Yang's "giant, forthcoming study of the federal judiciary" is likely to tell us a lot that we do not already suspect or know.

That all said, I am already jazzed to hear a lot more about what Crystal Yang has collected and analyzed concerning the federal sentencing of "more than six hundred thousand convicted defendants between 2000 and 2009"!  That is a whole lot of data, and it spans a remarkable decade in federal sentencing developments which included the passage of the PROTECT Act and the transformation of federal sentencing law and practices wrought by Blakely and Booker and its progeny.

UPDATE:  After doing a little research, I think I discovered that an updated version of Crystal Yang's research discussed above is now available here at SSRN, and is soon to be published in the New York University Law Review.

February 21, 2014 in Booker in district courts, Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

SCOTUS permits additional briefing on CP restitution issues in light of Burrage

The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences.  Here is the text of the order:

The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted.  The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.

Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:

The Court, it appears, did not stir up this new issue on its own.  The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case.  The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.

Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....

In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.”  The letter offered to submit a brief on the point.

In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively.  In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.

The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)