Thursday, May 8, 2014

Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts intended, in the words of my article's introduction, "to encourage more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final." This initial substantive post will set out a foundational conceptual idea from my article — an idea which drives much of my thinking about sentence finality and seems somewhat obvious to me, but one that others might consider controversial.   Here is how I set up the idea in my article (with a lengthy footnote omitted):

The issue of sentence finality is necessarily connected, of course, to the status and treatment afforded final criminal judgments more generally.  For more than a half-century, a robust jurisprudential debate has swirled in the Supreme Court and in academic circles concerning federal court authority to review final state criminal judgments using the historic writ of habeas corpus.  But courts and scholars analyzing whether and how defendants should be able to attack final criminal judgments have too often failed to explore or even recognize that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  It is curious and problematic that modern finality doctrines and debates rarely distinguish between final convictions and final sentences: curious because courts and commentators have long recognized that the determination of guilt and the imposition of punishment involve distinct stages of criminal adjudication calling for different rules and procedures; problematic because the strongest justifications for limiting reconsideration of final convictions are less compelling with respect to final sentences.

Stated a bit more directly, a foundational conceptual idea in my work here is that, whatever one may think about the importance of preserving final convictions and/or limiting ways in which final convictions can be reviewed or reconsidered, there are necessarily distinct concerns and issues surrounding the treatment of final sentences.  Perhaps in part because I am a sentencing geek, it seems so very obvious to me that, in just about any and every setting, the legal questions and policy debates that surround sentences are distinct in kind from the legal questions and policy debates that surround convictions.  But maybe this instinct and insight in the context of finality discussions is more controversial than I realize.

Prior post in this series:

May 8, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (8) | TrackBack (0)

Intriguing new BJS data about national jail populations

I just received notice of a new Bureau of Justice Statistics publication, excitingly titled "Jail Inmates at Midyear 2013 -- Statistical Tables" and available at this link.  Though lacking a thrilling title, the data discussed in this publication are actually pretty interesting  This official BJS press release, excerpted below, provides some highlights:

After a peak in the number of inmates confined in county and city jails at midyear 2008 (785,533), the jail population was significantly lower by midyear 2013 (731,208). However, the estimated decline between midyear 2012 and 2013 was not statistically significant. California’s jails experienced an increase of about 12,000 inmates since midyear 2011....

Local jails admitted an estimated 11.7 million persons during the 12-month period ending June 30, 2013, remaining stable since 2011 (11.8 million) and down from a peak of 13.6 million admissions in 2008. The number of persons admitted to local jails in 2013 was 16 times the estimated 731,352 average daily number of jail inmates or average daily population during the 12-month period ending June 30, 2013....

Males represented at least 86 percent of the jail population since 2000. The female inmate population increased 10.9 percent (up 10,000 inmates) between midyear 2010 and 2013, while the male population declined 4.2 percent (down 27,500 inmates). The female jail population grew by an average of about 1 percent each year between 2005 and 2013. In comparison, the male jail population declined an annual average of less than 1 percent every year since 2005.

White inmates accounted for 47 percent of the total jail population, blacks represented 36 percent and Hispanics represented 15 percent at midyear 2013. An estimated 4,600 juveniles were held in local jails (less than 1 percent of the confined population), down from 5,400 during the same period in 2012.

At midyear 2013, about 6 in 10 inmates were not convicted, but were in jail awaiting court action on a current charge—a rate unchanged since 2005. About 4 in 10 inmates were sentenced offenders or convicted offenders awaiting sentencing. From the first significant decline in the overall jail population since midyear 2009, the unconvicted population (down 24,000 inmates) outpaced the decline in the convicted inmate population (down 12,000 inmates).

May 8, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack (0)

Fascinating discussion of "mom movement" to reform sex offender registration laws

NBC News has this lengthy new piece about efforts to reform sex offender registration laws under the headline "My Son, the Sex Offender: One Mother's Mission to Fight the Law."  The full piece is worthy of a full read, and here is how it gets started:

In the run up to Halloween one year, Sharie Keil saw something that really made her jump: Missouri governor Jay Nixon, then the attorney general. He was on television to announce that registered sex offenders were hereby banned from participating in her favorite holiday. On threat of a year in jail, they had to stay inside and display a sign saying they had no candy. The goal was “to protect our children,” as Nixon put it, but Keil heard only a peal of political hysteria.

She is not a sex offender nor, at 63, a new-age apologist for pedophiles or predators. She is a mother, however, and in 1998 her 17-year-old son had sex with a pre-teen girl at a party. He was convicted of aggravated sexual abuse, which got him six months in county jail and a lifetime of mandatory registration as a sex offender. Ten years later, after the Halloween law, Keil felt shocked into action.

”As my husband says, I decided to go on the war path,” she remembers. Today, she’s at the forefront of a growing fight against sex offender registries, a shame-free alliance of offenders and their families, supported by researchers and some advocates who helped pass stringent anti-abuse laws in the first place. They’re organized (albeit loosely) under Reform Sex Offender Laws, a five-year-old lobby that claims 38 state affiliates and a steady patter of legal and legislative victories.

Most of their progress, however, has been limited to a slice of the registry: juvenile offenders. That would remove Keil’s son, but this former soccer mom and chapter head of the League of Women Voters wants to abolish the public registry altogether. She funds a powerful RSOL affiliate, Missouri Citizens for Reform, which has helped push sweeping changes through the Missouri House four years in a row, only to see the effort smothered in the Senate or, last summer, stabbed by a governor’s veto.

“Changing the registry would provide relief for tens of thousands of Missourians,” Keil says. “Since there are nearly 800,000 people on the registry nationally, millions of lives would change for the better.”

As reckless as Keil’s ideas may sound, she and her intellectual allies—among them Nicole Pittman, an attorney who slammed registries in a Human Rights Watch report last year—are fervently opposed to sexual abuse and believe in jail time for law breakers. However, they also hope to realign the law with second-chance ideals and new research that shows rehabilitation is possible, even for America’s last pariahs.

If they succeed, Keil believes, public safety will actually improve. As the registries shrink or disappear, law enforcement will be freed to focus on crime prevention. If the movement fails, she warns, public safety could suffer. Truly dangerous people will be lost in the thousands that police must monitor, while relatively harmless offenders break bad in a system that gives them no hope for a normal future.

May 8, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack (0)

"In Defense of Capital Punishment: A 'botched' execution does not render the death penalty illegitimate"

The title of this post is the headline of this potent commentary by Jonah Goldberg at National Review. Here are excerpts:

Last week the state of Oklahoma “botched” an execution.  Botched is the accepted term in the media coverage, despite the fact that Clayton Lockett was executed.  He just died badly, suffering for 43 minutes until he eventually had a heart attack.

Oklahoma’s governor has called for an investigation.  President Obama asked Attorney General Eric Holder (who is seeking the death penalty in the Boston Marathon bombing case) to review the death penalty. Obama’s position was a perfectly defensible straddle: “The individual . . . had committed heinous crimes, terrible crimes, and I’ve said in the past that there are certain circumstances where a crime is so terrible that the application of the death penalty may be appropriate.”

On the other hand, Obama added: “I’ve also said that in the application of the death penalty . . . we have seen significant problems, racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to be innocent.  I think we do have to, as a society, ask ourselves some difficult and profound questions.”

As a death-penalty supporter, I agree.  Although I’m not sure we’d agree on what those questions — and answers — should be.  As for Lockett, he was entitled to a relatively painless and humane execution under the law. As for what he deserved in the cosmic sense, I suspect he got off easy....

Capital-punishment opponents offer many arguments why people like Lockett shouldn’t be executed.  They point out that there are racial disparities in how the death penalty is administered, for example. This strikes me as an insufficient argument, much like the deterrence argument from death-penalty supporters.  Deterrence may have some validity, but it alone cannot justify the death penalty.  It is wrong to kill a man just to send a message to others.  Likewise, Lockett, who was black, wasn’t less deserving of punishment simply because some white rapist and murderer didn’t get his just punishment.

The most cynical argument against the death penalty is to point out how slow and expensive the process is.  But it is slow and expensive at least in part because its opponents have made it slow and expensive, so they can complain about how slow and expensive it is....

Some believe the best argument against the death penalty is the fear that an innocent person might be executed. It’s hotly debated whether that has ever happened, but it’s clear that innocent people have been sent to death row. Even one such circumstance is outrageous and unacceptable. But even that is not an argument against the death penalty per se.  The FDA, police officers, and other government entities with less constitutional legitimacy than the death penalty (see the Fifth and 14th amendments) have made errors that resulted in innocent deaths.  That doesn’t render these entities and their functions illegitimate.  It obligates government to do better.

Radley Balko, a death-penalty opponent, in a piece in the Washington Post, says that ultimately both sides of the death-penalty debate have irreconcilable moral convictions. I think he’s right. As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.

There are various parts of this commentary that I consider astute (e.g., I call Lockett's execution ugly, not botched, because he did end up dead), and others that seem to me quite peculiar (e.g., if deterrence cannot justify the death penalty, why can it be used to justify any state punishment?). But I find especially valuable this commentary's emphasis that "irreconcilable moral convictions" may be at the base of all modern heated death penalty debates.

Notable missing, though, is the parallel reality I see that irreconcilable political convictions seemingly influence both supporters and opponents of the death penalty.  Notably, in this commentary from last year, Jonah Goldberg effectively explains why the "only people in the world who don’t want the government to get much smarter are the ones working for it."  In light of that astute observation, how can  he have any confidence that, in response to the ugly Lockett execution, governments can or will fulfill their "obligat[ion] to do better"?

Of course, similarly telling and curious view about government powers and possibilities often seems to infest liberal critics of the death penalty.  As Goldberg highlights, a lot of claims about inevitable government dysfunction drives a lot of the modern abolitionist movement.  But the modern death penalty is arguable the most effectively and comprehensive regulated of all government activities, and in other settings folks on the left often respond to government and regulatory failings by calling for more government and regulation, not less.

I make these points not to chide either supporters or opponents of the death penalty, but rather to encourage folks to notice not only that irreconcilable moral convictions are often involved in death penalty debates, but also that these moral convictions often regularly eclipse typical political convictions in this setting.

May 8, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"Criminal Law Multitasking"

The title of this post is the title of this intriguing new article by Hadar Dancig-Rosenberg and Tali Gal. Here is the abstract:

Criminal law pursues multiple goals: retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation.  Scholars tend to analyze these goals and their implementation in separation from each other, without accounting for their interplay and coordination.  A theory of criminal law multitasking is overdue.

This Article sets up a conceptual framework for such a theory.  We develop a taxonomy that captures the interplay between various procedures and substantive goals promoted by criminal law.  Based on this taxonomy, we discuss five mechanisms of criminal law.  We propose that policymakers and law enforcers select one or more of these mechanisms to implement the chosen mix of retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation.  We provide reasons guiding this selection, among them constructive community involvement, offenders' responsiveness, and integration of victims' rights.  We illustrate the operation of our multitasking approach in real-world cases and illustrate its ability to facilitate the implementation of the deferred prosecution and adjudication mechanisms promulgated by the current Draft of the Model Penal Code.

May 8, 2014 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

Boston Marathon bomber's defense team starts legal attack on federal death penalt

As reported in this Boston Globe article, "attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev today asked a federal judge to declare the federal death penalty unconstitutional for a number of reasons, including the fact that Massachusetts itself does not permit capital punishment." Here is more about the filing:

The attorneys also argued that the federal death penalty violates the Eighth Amendment ban on “cruel and unusual punishment" because there is the possibility that innocent people will be executed and there is a history of a “seemingly ineradicable pattern of racially disparate enforcement."

The attorneys, in a filing in US District Court in Boston, noted that the First US Circuit Court of Appeals had rejected similar arguments raised in the case of serial killer Gary Sampson in 2007. But the attorneys argued that new developments, including changes in the law and public revulsion over events such as the recent botched execution in Oklahoma, argued for US District Judge George A. O’Toole Jr. to take a new look.

“The vulnerability of this particular death penalty prosecution to Eighth Amendment challenge is all the greater in light of recent legal authority and scholarship that cast doubt on the power of the federal government to impose the death penalty in states, like Massachusetts, that have abolished it," the attorneys wrote. The attorneys argued that the Eighth Amendment was not just intended to secure individual rights but also to constrain the power of the federal government.

“When the Eighth Amendment is properly understood as part of an effort to limit the power of the federal government, it should prohibit the federal government from inflicting severe punishments that are not authorized by state law,” the attorneys said.

Tsarnaev, 20, is being held at the federal prison at Fort Devens in Ayer. Prosecutors are seeking the death penalty against him if he is convicted of setting off the April 15, 2013, bombs that killed three people and injured more than 260. He has pleaded not guilty to all charges. His older brother and alleged accomplice, Tamerlan, was killed in a confrontation with police in Watertown. The brothers also allegedly killed an MIT police officer; Tsarnaev faces state charges in that case....

In a separate motion, the lawyers also argued that if the grand jury that indicted Tsarnaev on 30 counts did not know he would face the possibility of the death penalty, then he should not be subject to it. The lawyers sought grand jury transcripts to find out what the grand jury knew about the possible consequences of its indictments.

May 7, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (11) | TrackBack (0)

Elderly coke dealer, on his 90th birthday, gets 3-year prison sentence

As reported in this local piece, headlined "90-Year-Old Drug Mule Sentenced To 3 Years For Part In Major Drug Scheme," a unique drug dealer got a pretty standard drug sentence in federal court in Michigan today. Here are the details:

Leo Sharp learned that he would spend three years in federal prison for his role in a major drug operation in which prosecutors say Sharp transported more than 2,000 pounds of cocaine to across the country before being caught in Michigan.  Sharp was running bricks of cocaine from Tucson, Arizona, to Detroit when he was pulled over near Chelsea, 60 miles west of Detroit, after making a bad lane change in 2011.

Outside the courthouse Sharp cried that he was “heartbroken” and didn’t feel that his age had anything to do with the length of his prison sentence. When a state trooper approached, Sharp was upset and declared, “Just kill me and let me leave this planet.”...

Prosecutors were recommending a five-year prison sentence — urging the judge to look beyond Sharp’s age and health issues and lock him up for delivering more than a ton of cocaine.  Assistant U.S. Attorney Christopher Graveline, noted that there’s video of Sharp  — known as “grandpa” and “old man” — joking and laughing with others charged in the drug conspiracy.

Graveline said Sharp received at least $1.25 million from his handlers for hauling more than 2,750 pounds of cocaine to Michigan from the Southwest in 2010 and 2011.  He’s one of 19 people under indictment in a case connected to Mexico’s Sinaloa drug cartel. Graveline said the cartel “literally flooded the streets of southeast Michigan and Fort Wayne, Indiana, with kilograms of cocaine.”

Sharp, of Michigan City, Indiana, had hoped to stay out of prison.  Defense attorney Darryl Goldberg said Sharp has dementia and other issues, and would be a burden for the prison system. “Of course I respectfully disagree with the judge’s sentence but she is a very experienced jurist and I hope that Leo can survive the sentence,” said Goldberg....

During sentencing Judge Nancy Edmunds said Sharp was in the middle of a huge operation and transported cocaine six different times and was paid more than a million dollars.

Recent related post:

May 7, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (6) | TrackBack (0)

Examining "sentence finality" at length in new article and series of posts

I am pleased to report that an article I completed in conjunction with a wonderful symposium on "Finality in Sentencing" for the Wake Forest Journal of Law & Policy is now in print and available in full via this SSRN link.  

The full title of my article is "Re-Balancing Fitness, Fairness, and Finality for Sentences," and here is the abstract: 

This Essay examines the issue of “sentence finality” in the hope of encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final.  Drawing on American legal history and modern penal realities, this Essay highlights reasons why sentence finality has only quite recently become an issue of considerable importance.  This Essay also suggests that this history combines with modern mass incarceration in the United States to call for policy-makers, executive officials, and judges now to be less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.

Regular readers know I have commented in the past in this space about my fear that too much stock and weight is often put on "sentence finality" (as distinct from "conviction finality"), and this article provided me the first real opportunity to think and write about this issue more thoroughly and systematically.  And yet I fear I am only scratching the surface of various important conceptual and practical issues in this Wake article; as a result, I may end up writing a lot more on this topic in the months and years.  

In service to my stated goal "to encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final," I am planning in the days ahead to reprint and discuss in separate posts a few of the ideas and themes that find expression in this article.  For now, I am hopeful that readers will check out the full article and perhaps let me know via comments if they find this topic of sufficient interest and importance so as to justify many additional posts on sentence finality.

May 7, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

New Human Rights Watch report bemoans "Nation Behind Bars"

HRWAs reported in this press release, Human Rights Watch has issued a new report highlighting the problems of mass incarceration in the united States. Here are the details (and a link) via the the start of the press release:

The 36-page report, “Nation Behind Bars: A Human Rights Solution,” notes that laws requiring penalties that are far longer than necessary to meet the purposes of punishment have given the United States the world’s highest reported rate of incarceration. These laws have spawned widespread and well-founded public doubts about the fairness of the US criminal justice system.

“The ‘land of the free’ has become a country of prisons,” said Jamie Fellner, co-author of the report and senior advisor to the US Program at Human Rights Watch. “Too many men and women are serving harsh prison sentences for nonviolent and often minor crimes. How can a country committed to liberty send minor dealers to die in prison for selling small amounts of illegal drugs to adults?”....

Momentum to reduce mass incarceration is growing. Human Rights Watch is seeking to build on this momentum and offer a way forward. Federal and state legislators should ground their moves for reform in core principles of human rights, including prudent use of criminal sanctions, fair punishment, and equal protection of the laws.

To put those principles into practice, Human Rights Watch urges legislators at the very least to:

May 7, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)

So many marijuana developments, so many new posts at MLP&R

In part because there is so much activity on so many marijuana law and policy front, I have been remiss lately about doing my usual round ups of notable posts from Marijuana Law, Policy and Reform.   I highly encourage everyone interested in drug reform topics to make regular stops at MLP&R, though I also will try to keep finding time to provide a sampling here of recent posts from MLP&R that help highlight how dynamic the (non-sentencing parts of the) marijuana reform world continues to be.  So:

May 7, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack (0)

The Constitution Project issues big new report calling for broad reform of capital punishment administration

As reported in this Los Angeles Times article, a big new report by The Constitution Project recommends more than three dozen changes to the administration of the death penalty in the US.  Here are the basic details:

The death penalty should be overhauled "from the moment of arrest to the moment of death," and the lethal drug cocktail used in Oklahoma's botched execution last week should be abolished in favor of a single drug, according to a bipartisan panel of criminal justice experts.

The committee, which included death penalty supporters who have been responsible for carrying it out, recommended using a single anesthetic or barbiturate approved by the Food and Drug Administration to bring on death, as well as 38 other changes.

"Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, who was a Republican attorney general of Virginia when the state carried out 36 executions.

The study by the panel at the Constitution Project, a Washington legal research group, is billed as one of the most comprehensive reviews of the ultimate punishment ever undertaken in the U.S....

Particularly timely is the report's recommendation that the most commonly used drug protocol for lethal injections — a barbiturate for anesthesia, followed by a muscle relaxant to stop breathing and an electrolyte to stop the heart — be replaced by large doses of a single anesthetic or barbiturate. The report said that difficulties in obtaining the proper drugs, complicated procedures for mixing them and the lack of trained medical staff willing to administer them have led to unnecessary suffering on the part of the condemned....

The committee that undertook the two-year study was led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson, who helped prosecute the Oklahoma City bombing case. The panel included former FBI Director William S. Sessions and several prosecutors and judges, as well as death penalty opponents....

White said the report should be useful to Atty. Gen. Eric H. Holder Jr., whom President Obama asked to examine how the death penalty is carried out in light of what happened in Oklahoma.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death-penalty group in Sacramento, disputed the Constitution Project's claim that its report was bipartisan. "The Constitution Project always takes the side of the defendants," Scheidegger said. "Their claim to be neutral is dishonest." But he said he agreed with the one-drug approach to capital punishment.

The report says state and federal courts too often refuse to hear claims of new evidence presented by prisoners on death row and use other procedural means to deny prisoners their rights. It calls on states to adopt new procedures to evaluate whether a defendant is intellectually disabled. It urges new federal standards for forensic labs and examiners, and says they should operate independently from law enforcement, which would be a major change.

The report also says states should no longer execute people for "felony murder," in which someone who participates in a crime resulting in death can be convicted of murder even if he or she did not do the killing.

The 200+ page report by The Constitution Project is titled "Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment," and it can be accessed at this link.

May 7, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Within-guideline sentences dip below 50% according to latest USSC data

Due to a busy end-of-the-semester schedule, I only just this week got a chance to look at US Sentencing Commission's posting here of its First Quarter FY14 Quarterly Sentencing data.  And, as the title of this post highlights, there is big news in these USSC data: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences.  To be exact, only 48.8% of the 18,169 sentences imposed during the last three months of 2013 were within-guideline sentences.

In this post following the previous quarterly USSC data release, I noted a small uptick in the number of below guideline sentences imposed by federal district judges (from around 18.5% of all federal cases to 19.3% in the last quarter of FY13).  At that time, I hypothesized that perhaps a few more judges were willing to impose below-guideline sentences in a few more federal cases after Attorney General Eric Holder's big August 2013 speech to the ABA lamenting excessive use of incarceration in the United States.  Now, in this latest quarterly data run, the number of judge-initiated, below-guideline sentences has ticked up again, this time to 20.4% of all sentenced federal cases.  I now this this data blip is evidence of a real "Holder effect."

Though still more time and data are needed before firm causal conclusions should be reached here, I do believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way federal judges are now using their post-Booker discretion.  The data from the last six month suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Holder's call for less reliance on long terms of incarceration, more federal judges feel ever more justified in imposing more sentences below the guidelines. 

May 7, 2014 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Tuesday, May 6, 2014

"The Growth of Incarceration in the United States: Exploring Causes and Consequences"

The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering).  The report runs more than 450 pages and can be accessed at this link

I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way.  Fortunately, the always help folks at The Crime Report have these two great postings about the report:

I hope to be able to provide more detailed coverage of this important report in the weeks to come.

May 6, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack (0)

California Supreme Court decides Miller demands altering presumption for juve LWOP

As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state.  Here are the basics:

In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.

Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances.  The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.

The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.

In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.

"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."

Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.

But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.

Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.

Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.

The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.

May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"Habeas and the Roberts Court"

The title of this post is the title of this intriguing new article by Aziz Huq.  Here is the abstract:

Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work.  Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’  They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny.

The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms.  In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task.

Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle.  This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state.  Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

May 6, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Monday, May 5, 2014

Detailing notable legal challenge to juve sex offender registration requirements

The AP has this notable new article headlined simply "Juvenile Sex-offender Registries are Challenged." Here are excerpts:

By the time he was arrested for sexually assaulting two siblings, 15-year-old J.B. had been molested by his alcoholic father and subjected to 25 moves among his birth, foster and adoptive families.  He had also suffered from untreated attention deficit hyperactivity disorder and depression.

Though tried in juvenile court, with its focus on privacy and rehabilitation, he was later required by a 2012 Pennsylvania law to register as a sex offender — branded a long-term danger to society, with no way off the list for at least 25 years.  Juvenile law advocates campaigning against such automatic registries argue that they undermine the rehabilitative purpose of juvenile law and wrongly force judges to treat offenders the same, no matter their circumstances.  In Pennsylvania, local judges increasingly agree with them.

Late last year, a central Pennsylvania judge weighing the cases of J.B., as he is known in court documents, and six others found the registration law violated the state constitution. Now the issue is headed to the state high court....  In the Pennsylvania Supreme Court on Tuesday, juvenile advocates will argue that the registration requirement amounts to cruel and unusual punishment and creates roadblocks for young people trying to rebuild their lives.

Across the country, a growing number of juvenile judges, advocates and policymakers are questioning the effect of the registration mandate Congress passed under the 2006 Adam Walsh Act, named after the Florida boy abducted and killed in 1981.  States that don't comply risk losing millions in federal law enforcement grants.  A few states, including Texas and California, decided it was cheaper to opt out of the Walsh Act, and the Ohio Supreme Court has since found the juvenile registry unconstitutional....

Prosecutors in York County defend the law. "The standards are not meant to be easy," said Tim Barker, the chief deputy district attorney.  "They were created with an eye toward the protection of the public."  Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorneys Association, said the law was forced on states by the funding tie-in.  But he said he believes the mandate is appropriate in the most serious cases, including one in his county in which a teen raised amid violent pornography assaulted a 3-year-old neighbor....

The Philadelphia-based Juvenile Law Center, which successfully argued J.B.'s case, believes judges need the authority to fashion what they deem appropriate placement and treatment plans.  "That's very separate and distinct from saying we're going to put a scarlet `A' on these kids for the rest of their lives," said Marsha Levick, the center's chief counsel.

Recent reports by Human Rights Watch and the Illinois Juvenile Justice Commission — both critical of juvenile registries — found that children lash out sexually for different reasons than adults and are less likely to reoffend. One survey involving about 11,000 young offenders put the recidivism rate at 7 percent, compared with 13 percent for adult sex offenders, according to the Human Rights Watch report.

Nearly all other states compile some sort of registry, although 11 states do so only if the juveniles are tried in adult court.  Pennsylvania's law applies to teens 14 to 17 accused of rape, aggravated sexual assault and other serious sex crimes.  In practice, though, lesser pleas are often being negotiated to avoid triggering the reporting mandate, prosecutors and defense attorneys said.

Some related posts:

May 5, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack (0)

New York Times op-ed spotlights enduring flaw with modern drug sentencing

Today's New York Times has this notable new op-ed authored by Mark Osler under the headline "We Need Al Capone Drug Laws."  Here are highights:

After a ruinous 30-year experiment in harsh sentences for narcotics trafficking resulting in mass incarceration, policy makers are having second thoughts.  Many states, including Texas, have reformed their laws to shorten sentences.  Congress is giving serious consideration to the Smarter Sentencing Act, which would do the same. The United States Sentencing Commission has just adopted a proposal to revise federal guidelines.

And most recently, Attorney General Eric H. Holder Jr. announced that President Obama intends to use his executive pardon power to release hundreds or even thousands of federal prisoners with narcotics convictions (I am on a committee to train lawyers for the project).  Something like that hasn’t happened since President John F. Kennedy granted clemency to more than 200 prisoners convicted of drug crimes.

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure.  If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.  That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant.  It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons....

Some laws create remarkably low thresholds for the highest penalties.  For example, my home state of Minnesota categorizes someone who sells just 10 grams of powder cocaine (the equivalent of 10 sugar packets) as guilty of a first-degree controlled-substance crime — the most serious of five felony categories.  There is no real differentiation between the most culpable wholesaler and an occasional street dealer.  

The problem with recent legal reforms is that they don’t dispose of this rotten infrastructure.  In 2010, Congress passed the Fair Sentencing Act, which changed the ratio between crack and powder cocaine for sentencing purposes from 100-to-1 (meaning the same sentence applied to 100 grams of powder cocaine and to 1 gram of crack) to 18-to-1.  

What the Fair Sentencing Act didn’t do is change the basic weight-centric centric focus that has filled our prisons with narcotics convicts. There were 4,749 such prisoners serving federal time in 1980, before the harshest weight-based standards were implemented. As of 2013, that number was 100,026. As for the drugs themselves, they’re still here....

A better measure of culpability would be the amount of profit that any individual took from the operation of a narcotics ring. Because narcotics conspiracies are nothing more or less than a business, they operate like any other business. The people who have the most important skills, capital at risk or entrepreneurial abilities take the most money. Statutes and guidelines should be rewritten so that profit thresholds replace narcotic weight thresholds. Only then will mules and street sellers properly face much shorter sentences than real kingpins.

This would, of course, create a new challenge for prosecutors and investigators, who would have to prove the amount of profit made by an individual defendant. It wouldn’t be as easy as snatching up mules and street dealers. But then “easy” and “justice” rarely rest comfortably with each other.

May 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4) | TrackBack (0)

Notable two-part account of constitutional "Case for Gradual Abolition of the Death Penalty"

I just learned about these two notable new articles by Kevin Barry available via SSRN:

From Wolves, Lambs (Part 1): The Eighth Amendment Case for Gradual Abolition of the Death Penalty

This spring, the Connecticut Supreme Court will decide a novel issue in all of modern death penalty jurisprudence. The issue is this: Can a state gradually abolish its death penalty, that is, can it leave in place the sentences of those currently on death row but abolish the death penalty going forward? This Article argues that it can. As a matter of statutory construction, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although constitutional questions are admittedly less straightforward, prospective-only repeal does not offend either the Eighth or Fourteenth Amendments. The death penalty remains constitutional per se under the Eight Amendment, and “as applied” challenges fare no better. Under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, rational reasons abound for abolishing the death penalty while maintaining death row intact.

Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is it wise to abolish prospective-only? The second is a moral one: Is it right to tell those who committed murder on Day 1 that they must remain on death row, while eliminating the death penalty for those who commit murder on Day 2? This Article answers both questions in the affirmative. Prospective-only death penalty repeal promises both retraction of the death penalty and preservation of the status quo and is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.

From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty

Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.

Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future. If the Connecticut Supreme Court upholds Connecticut’s repeal in Santiago, the way will be clear for other courts to uphold legislation abolishing the death penalty prospective-only.

This Article is the second of two articles examining the emergence of this new trend of “gradual abolition” of the death penalty, by which state legislatures eliminate the death penalty for future crimes only and the executive retains it for those on death row. It begins with a discussion of the legislature’s strategic decision to abolish the death penalty prospective-only — a time-tested strategy that helped to end another infamous American institution: slavery. This Article next turns from the legislature to the courts, concluding, that prospective-only repeal does not violate the Fourteenth Amendment; rational reasons abound for repealing the death penalty for some but not all, and due process is not offended by retaining death row intact.

Lastly, this Article points the way forward — to the future of those who remain on death row and capital offenders who await sentencing post-repeal. It argues that, post-repeal, the executive should grant clemency and capital sentencing juries should return life sentences — not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order. Indeed, there is no record of a death row prisoner ever being executed after prospective-only repeal of the death penalty; hopefully, there never will be.

May 5, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

SCOTUS summarily reverses grant of summary judgment to police in excessive force suit

The Supreme Court this morning issued a summary reversal in an intriguing little case from the Fifth Circuit.  Here is how the per curiam opinion in Tolan v. Cotton, No. 13-551 (S. Ct. May 5, 2014) (available here) gets started:

During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton.  Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment.  The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right.  713 F. 3d 299 (2013).  In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”  Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).  For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion.

Intriguingly, Justice Alito (joined by Justice Scalia) write separately to complain about this ruling only being a form of error correction and "that the granting of review in this case sets a precedent that, if followed in other cases, will very substantially alter the Court’s practice."

May 5, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack (0)

SCOTUS unanimously rejects defendant's effort to reduce restitution owing under MVRA

The Supreme Court handed down a unanimous ruling in a restitution case this morning. Here is how the opinion for the Court in Robers v. US, No. 12-9012 (S. Ct. May 4) (available here), gets started:

The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.”  § 3663A(b)(1)(B).  The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.

We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent.  Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.

May 5, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

Sunday, May 4, 2014

Shouldn't Congress be holding hearings to explore federal and state execution methods?

The question in the title of this post is my reaction to this Wall Street Journal article headlined "Justice Department Expands Review of Death-Penalty Procedures." Here are excerpts, with the key fact prompting my question emphasized:

The Justice Department has launched a review of state-run executions of death-row inmates, after President Barack Obama raised concerns about a botched execution earlier this week in Oklahoma.  A department spokesman said the agency would begin a review of state-run death-penalty programs, similar to one it has been conducting on federal capital punishment. Federal executions are rare, and there has been a moratorium in place since 2011 while the Justice Department reviews its policies. "The department is currently conducting a review of the federal protocol used by the Bureau of Prisons, and has a moratorium in place on federal executions in the meantime," said the spokesman, Brian Fallon. "At the president's direction, the department will expand this review to include a survey of state-level protocols and related policy issues."

Mr. Obama, speaking at a news conference Friday after a bilateral meeting with German Chancellor Angela Merkel, called the seemingly flawed execution "deeply troubling" and said he would discuss with Attorney General Eric Holder this particular case and an analysis of U.S. death penalty practices more broadly.

The Oklahoma execution highlights some of the wider problems with U.S. death-penalty practices, he said. Mr. Obama supports the death penalty, and noted the Oklahoma inmate's "heinous" crime, but he has raised questions about it, including racial bias in the American justice system.

Regular readers know I have long been wondering and worried about how the feds were dealing with lethal injection problems in light of the fact that there are nearly a half-dozen federal death row prisoners who have nearly exhausted their appeals and should be heading soon to the execution chamber.  I surmise from this WSJ story that DOJ has been content to take its sweet time to "review its policies" on lethal injection and thus kick this controversial matter to the next person in the Oval Office.  Now, I fear, this expansion of the DOJ review to include a "survey of state-level protocols and related policy issues" is likely to provide a convenient excuse for this "review" to take another couple of years or longer.

All the national and international attention following the ugly execution in Oklahoma, as well as the President's latest comments on this topic, provide further evidence that execution methods and practices are an important issues that implicate lots of federal interests.  Federal courts, of course, have been the focal point of the constitutional debate over lethal injection now for well over a decade. The US Justice Department, it now seems, is heading toward a more than a half-decade of its own "review" of these matters.  At some point I hope (but do not readily expect) that the Article I branch of our national government will finally decide it ought to get involved with these matters.

Some recent related posts:

May 4, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Should those who really favor gun rights protest the right to sell and own a safer gun?

The question in the title of this post is a little of my usual topics, but I need to vent a bit about this discouraging story in the Washington Post highlighting that some folks who support gun rights are against the idea of using technology to produce a safer gun.  The article is headlined "Maryland dealer, under pressure from gun-rights activists, drops plan to sell smart gun," and here are excerpts:

A Rockville gun store owner who said he would sell the nation’s first smart gun — even after a California gun store removed the weapon from its shelves to placate angry gun-rights activists — backed down late Thursday night after enduring a day of protests and death threats.

Andy Raymond, the co-owner of Engage Armament, a store known for its custom assault rifles, had said earlier this week that offering the Armatix iP1 handgun was a “really tough decision” after what happened to the Oak Tree Gun Club near Los Angeles. Oak Tree was lambasted by gun owners and National Rifle Association members who fear the new technology will be mandated and will encroach on Second Amendment rights.

Electronic chips in the gun communicate with a watch that can be bought separately. The gun cannot be fired without the watch....

[A]fter hundreds of protests on his store’s Facebook page and online forums — a repeat of what Oak Tree faced — Raymond released a long video on the Facebook page saying he had received death threats and would not sell the gun. He apologized and took responsibility for the decision. He had sold none of the smart guns and would not, he said.

Earlier, Raymond had said he’s on the “right-wing vanguard of gun rights” but is vehemently opposed to gun rights activists arguing against the idea of a smart gun — or any gun. “To me that is so fricking hypocritical,” Raymond had said. “That’s the antithesis of everything that we pro-gun, pro-Second Amendment people should be. You are not supposed to say a gun should be prohibited. Then you are being no different than the anti-gun people who say an AR-15 should be prohibited.”...

Besides reliability in the face of danger, the opponents’ most pressing fear is that sales of the iP1 will trigger a New Jersey law mandating that all handguns in the state be personalized within three years of a smart gun’s going on sale anywhere in the United States. Similar proposals have been introduced in California and Congress.

Raymond said he didn’t want the law to kick in and didn’t think he’d be responsible if it did, because Oak Tree already had the gun for sale. He said the law was not his problem or Armatix’s. “This is not Armatix screwing over the people of New Jersey,” he said. “It’s the legislature screwing over the people of New Jersey. Bushmaster didn’t screw over the people of Newtown. Adam Lanza did. It’s just disgusting to me to see pro-gun people acting like anti-gunners. What is free if it’s not choice?”...

The demand for smart guns is subject to debate. Gun rights advocates, including the National Shooting Sports Foundation, say there seems to be little desire for such weapons at the moment. They point to a survey the group commissioned last year showing that 14 percent of Americans would consider buying a smart gun. “We think the market should decide,” Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, told The Post this year.

Gun-control advocates believe that smart guns could reduce gun violence, suicides and accidental shootings. A dream of researchers and politicians for decades, the idea found renewed interest within the federal government following the massacre at Sandy Hook Elementary School in Newtown, Conn., in 2012. A group of Silicon Valley investors led by Ron Conway recently launched a $1 million contest to encourage smart-gun technology.

Numerous approaches are in development. Armatix uses RFID chips like those in anti-theft tags attached to clothing in stores. Other companies use a ring to enable the gun’s operation. Grips that recognize an owner are being tested, as are sensors to detect fingerprints and voices. The iP1, developed over a period of years by Armatix, a German firm, is the first smart gun to be marketed in the United States.

Increasing gun ownership is what Raymond said he was after in planning to sell the iP1. “If this gets more people, especially those on the fence, to go out and enjoy their Second Amendment freedoms, to go sport shooting and realize how much fun it is, then I am all for it,” Raymond said before changing his mind. “This is really not a bad thing.”

Regular readers know that I am both a supporter of the Second Amendment and of smart gun technology. If developed effectively, smart guns ought be be able to increase gun rights and reduce gun violence: e.g., smart gun technology might be a way to allow a former non-violent felon, who now is prohibited by federal law from possessing any firearm, to own a gun for self-protection that can only operate from his home. And smart gun technology ought to be able to provide effective digital evidence of gun use (and misuse) to be used by police and other law enforcement officials to investigate and prevent crime.

I understand the fears that some gun rights advocates may have about possible "misuse" of smart gun technology, but these folks should realize that these kinds of concerns about the misuse of a good technology (i.e., guns) are exactly what motivates gun control advocates.  Moreover, as smart gun technology improves, I suspect it is only a matter of time before the real issue is how these guns are made and sold, not whether they are available.

A few recent and older related posts:

May 4, 2014 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

"Criminals Get All the Rights: The Sociolegal Construction of Different Rights to Die"

The title of this post is the title of this intriguing new article available via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

In the United States, different people have different rights to die. After sketching the legal standards for hastening death, this article uses empirical research on “volunteers,” death-sentenced prisoners who hastened execution by dropping their appeals, to argue for integrating into adjudications of requests to hasten execution a Fourteenth Amendment analysis comparable to that used in medical cases.

The article discusses socio-legal influences contributing to death-sentenced prisoners’ simultaneously more expansive and less protective right to assistance in dying. Further, it contends that death-sentenced prisoners are more successful in hastening death not simply because of their sentence, but because the law is responding to differently defined social problems. Paradoxically, in this case, the more expansive right reflects and furthers social marginalization.  In addition to raising important questions about the legitimacy of the American death penalty, the Article illuminates the different ways in which rights to accelerate death can be implemented.  In so doing, the Article contributes to the increasingly pressing political debate over ordinary Americans’ ability to end their own lives.

May 4, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Saturday, May 3, 2014

"Harsh Sentencing, Overstuffed Prisons — It's Time for Reform"

The title of this post is the headline given to this new Wall Street Journal commentary authored by Mortimer Zuckerman.  Here are excerpts:

Too many people are in prison who should not be there.  How many?  Most of them!  It is not that they are innocent of the offenses that put them there.  It is that they are in prison mainly because we have criminalized vast areas for nonviolent offenders and compounded that with a distorted sentencing system.  Criminal justice cries out for reform.  Congress and the Justice Department have begun to listen.

Since 1980 the U.S. federal prison population has grown by about 800% (to 216,787 this week, according to the Bureau of Prisons), while the country's population has increased only a third.  By comparison, under President Reagan, the total correctional-control rate (that includes everyone in prison or jail or on probation or parole) was less than half what it is today.  And here's another shocker: At the federal level, nonviolent offenders account for 90% of prisoners....

Federal prisons today house nearly 40% more inmates than they were designed for, many of them repeat offenders.  According to an April 2011 report from the Pew Center on the States, more than 40% of state ex-convicts return to their cells within three years of release, and in some states the recidivism rate approaches 60%.  The inflexible mandatory-sentencing rules inflict punishments that in many cases no reasonable judge would impose — and then the system turns out prisoners who are more harmful to society than when they went in.  For instance, a June 2013 paper by Anna Aizer of Brown University and Joseph J. Doyle Jr. of MIT found that putting a minor in juvenile detention reduced his likelihood of graduating from high school by 13% and increased his odds of being incarcerated as an adult by 23%.

There is now an awakening to the desperate situation we created (out of the best of motives).  It is manifest in Congress, which has a bipartisan bill before it to refocus federal resources on incarcerating violent offenders and move away from low-level ones. We also see the urge for reform in Attorney General Eric Holder, as well as in the states, which together have six times as many prisoners as the federal government....

The states are laboratories of reform led by vigorous governors—who realize that prisons cost the states more than $50 billion a year, up from about $9 billion in 1985.  Beginning in 2007, Texas, under the leadership of Gov. Rick Perry, rejected a proposal to build eight more prisons (and has saved an estimated $2 billion overall in projected corrections spending).  Instead, Texas is shifting nonviolent offenders from state prisons into alternative treatment, and budgeting for rehabilitative programs for addicts and mentally-ill prisoners.  A March 2013 Pew Charitable Trust report on state and consumer initiatives found that the rate of parole failure had dropped 39% since 2007 and Texas had its lowest crime rate since the 1960s.

More than a dozen other states — including Ohio, Georgia and South Carolina — are shortening or even eliminating prison time for the lowest-risk, nonviolent offenders. Instead of spending on more prisons, many states are increasing the number and compensation of parole caseworkers, who in the past have been almost perpetually overwhelmed.  Technology like ATM-style check-in stations and ankle bracelets with GPS helps.

But funding is required for the roughly 650,000 federal and state prisoners who are released every year into society.  You cannot drop them on the curb to fend for themselves, for two-thirds are rearrested within three years.  Enlisting family members to help once their relative leaves prison is one proven way to reduce recidivism.  Sentencing nonviolent offenders to a minimum-security prison or even to home confinement is not only cheaper but also eliminates the strain on separated families and reduces the contagion of crime.

We have to be smart and tough on criminal-justice spending, with the goal of getting the most public safety from the more-efficient expenditures of taxpayer dollars. The central idea must be to return significant criminal-justice discretionary dollars to local authorities. Reserve expensive prison beds for career criminals and violent felons, and give local jails the responsibility and funding to oversee low-level inmates involved with less-violent crimes.

The politics of all this are admittedly touchy. But we cannot remain in the mind-set created by the 1980s crime explosion that led to a narrowing of criminals rights and tougher penalties. Think of all the billions spent building prisons that could have been spent on roads, hospitals, schools and airports. If we do not support the initiatives of all three government branches to reform the system, the verdict could only be: Guilty of waste and injustice.

May 3, 2014 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Noting challenges for mandatory minimum sentencing in Pennsylvania in wake of Alleyne

This local story from Pennsylvania, headlined "Mandatory sentencing disrupted by Supreme Court," discusses some of the difficult issues arising in the Keystone state as a result of the Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some details:

For the second time in a month, a Common Pleas Court judge has declared a mandatory sentencing provision inserted into a drug trafficking charge unconstitutional because it contradicts a U.S. Supreme Court decision handed down in June of last year.  Judge Phyllis Streitel, in a one-page order issued Tuesday, said the provision that would set a prison term at three years for the defendant, Demetrius Aaron Hardy of Las Vegas, Nev., could not be applied to him in the formal charges leveled by the prosecution without butting up against the high court’s decision....

Alleyne has set prosecutors across the state, including in Chester County, scrambling to add the minimum mandatory provision to drug charges.  It has also led to a slew of challenges to the moves, including an earlier county case that is now before the state Supreme Court.  “It’s a mess,” said one veteran West Chester defense attorney familiar with the appeals but who spoke on the condition on anonymity because he was not authorized to comment on the matter.  “Most of the judges are finding these cases to be unconstitutional.  It has go to be fixed by the legislature, or else there won’t be any more mandatories.”

Mandatory sentences gained popularity in the 1980s, and are now commonplace in many drug prosecutions.  District attorneys appreciate them because they add a level of security in what sentence a particular defendant will receive.  Judges are uncomfortable with them at times, because they remove a level of discretion they have in sentencing individual defendants.  And defense attorneys bristle at them, because they give the prosecution added leverage during plea negotiations with the threat of imposing a mandatory minimum should the defendant seek to go to trial....

Streitel issued a similar order on April 25 in the case of a 49-year-old West Nantmeal man, Dennis “Spanky” Alenovitz, who was arrested in early 2013 on charges that he sold methamphetamine to an confidential informant from his home on Pumpkin Hill Road over a two-month period. Alenovitz is also represented by Green.

The weights of the methamphetamine Alenovitz is alleged to have sold would have in the past automatically set his mandatory prison terms at three or four years, depending on the transaction, should be the prosecution asked the judge sentencing him to impose it.  But under the Alleyne ruling, the weight of the drugs triggering those mandatory sentences would have to be determined by a jury hearing Alenovitz’s case, not a judge, and be proven beyond a reasonable doubt....

Judge David Bortner had already ruled in another county case that adding mandatory provision to a criminal charge was unconstitutional.  That case, involving a Kennett Square man arrested by state police in April 2012, involves a mandatory sentence for selling drugs in a school zone.  That case is currently before the state Supreme Court on appeal by the prosecution.  It is among 11 such cases the court has agreed to hear to sort out the constitutionality of the provision, including ones from Montgomery and Luzerne counties....

Whether or not the mandatory provisions added to the charges are upheld or thrown out, the cases against Hardy, Alenovitz, and the defendant in Bortner’s case are not going to disappear; they will still be charged with selling drugs. If convicted, they would also still be subject to possible prison terms — even as long as the mandatory sentences the prosecution is seeking. But the eventual sentence in those cases would be up to a judge, not a prosecutor.

May 3, 2014 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Friday, May 2, 2014

Family of medical marijuana patients in Washington turn down plea and set up notable federal trial

HarveysThis lengthy new Huffington Post article, headlined "This Entire Family Of Medical Marijuana Patients Could Go To Prison For Growing Pot," spotlights a developing federal criminal case that seems likely to provide a notable criminal justice setting for the on-going national debate over marijuana law, policy and reform. Here are the basics:

Four family members and a close family friend in a rural town in northeastern Washington are facing years in federal prison for growing marijuana for their personal medical use.

Larry Harvey, 70, his wife Rhonda Firestack-Harvey, 55, their son Rolland Gregg, 33, and Rolland's wife Michelle, 35, as well as close family friend Jason Zucker, 38, claim they were individually growing 74 marijuana plants for their own medical use at the Harveys' rural home near Kettle Falls, Washington, as is their right under state law.

"There is no hidden agenda here," Rhonda said Thursday in a statement to the media. "My husband and I are retired, but work hard to live a peaceful, sustainable life in the northeast Washington wilderness.  We both have serious health issues and were told by our doctors that medical marijuana could help. All five of us have qualifying conditions, actually, and the garden was below the limit of 15 plants per patient."

"It's outrageous that the federal government is wasting money prosecuting five patients who were in total compliance with state law," Rhonda added.  The Harvey home was first raided by state authorities in August 2012 after two flybys from Washington state's Civil Air Patrol -- the official civilian auxiliary of the United States Air Force -- reported an apparent marijuana grow near the Harvey residence.

On August 9, according to a motion filed by the Washington state U.S. attorney's office, state law enforcers raided the Harvey property and found 74 plants growing near the home. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. The authorities did not press charges or seize any other assets.

However, days later, on August 16, federal authorities showed up with a new warrant and conducted a more comprehensive raid.  At the time, authorities were enacting a widespread crackdown on medical marijuana providers -- an effort that extended into states like California and Colorado -- at the directive of the Obama administration. During the Aug. 16 raid, Drug Enforcement Administration agents seized the Harveys' remaining marijuana plants, as well as about five pounds of raw cannabis and some marijuana-infused edibles from the freezer.  The feds also seized a 2007 Saturn Vue, $700 in cash, a computer, a motorcycle and an ATV, along with the family's legally owned firearms.

"This is not the kind of spectacular haul that the DEA is typically called in for," the family's attorneys wrote in a letter to Attorney General Eric Holder this February urging him to reconsider the charges. "Just the opposite, the evidence seized is consistent with the type of strict medical dosage that occurs with a doctor's supervision."

In 2013, the five patients were indicted by the Eastern Washington attorney general's office. According to the defendants' attorneys, all of them were growing cannabis in compliance with state law. Still, the federal government has charged each of them with six felonies apiece, including manufacturing, possession and distribution of marijuana, as well as the possession of a firearm in furtherance of drug trafficking, according to the indictment.

Because their trial is being held in federal court, it may not be enough of a defense for the family to argue that they were compliant with state law. In a motion filed Wednesday, Michael Ormsby, the U.S. attorney in eastern Washington state involved in the case, requested that "any evidence of medical purposes as well as the defendants' belief that they were lawfully engaged in marijuana cultivation" be inadmissible in court. Ormsby argued that the family's purpose for growing the marijuana is not the issue. Rather, he said, the "knowing or intentional manufacturing of marijuana" is all that matters in this case....

During pre-trial hearings for the case this week, the family unanimously rejected the plea deals offered by the prosecuting attorneys that would have reduced their maximum sentences to just three years behind bars. Without the plea deal, their maximum sentences range from up to 40 years to life in federal prison.

Washington state law allows for licensed medical marijuana patients to grow up to 15 plants and be in possession of up to 24 ounces of usable cannabis. The law also says that no more than 10 qualified patients can participate in a single collective garden. The patients can grow up to 15 plants each, but the garden cannot exceed 45 plants.

Federal authorities are charging the Harvey family with growing "100 or more" marijuana plants -- a charge that dramatically increases related fines and prison sentencing -- alleging that the family had grown a crop in 2011 similar in size to the one seized in the raids the following year. The charge is based on "numerous" photos, found on a seized computer from the residence, that allegedly depict the defendants in the grow at the same location in 2011, according to the motion filed by the U.S. attorney's office....

In their letter to Holder, the defendants' attorneys argued that there is no proof these five people are "perceived to be violent in any way," and say that the firearms had "absolutely nothing to do with the cultivation of cannabis." "This is a mom and pop on a family homestead near a National Wildlife Refuge in the Northeastern corner of Washington, where the nearest town is 10 miles in any direction," the attorneys wrote.

The family's attorneys argue that there is an "equal justice disparity" created by federal drug laws that directly contradict state laws in Washington, where medical marijuana has been legal for well over a decade. "In the very city where the Harvey family is set to stand trial, an ordinance was recently passed to establish groundbreaking licensing requirements for aspiring entrepreneurs in the existing medical marijuana field, as well as those planning to enter the emerging [recreational] marketplace," the attorneys wrote in their letter to Holder. "These conflicting realities cannot co-exist."...

Now that all five defendants have rejected the plea deals, their federal trial is expected to begin later this month. An official from the U.S. attorney's office in eastern Washington familiar with the matter said that the office cannot comment on ongoing cases.

For individuals and groups concerning about excessive federal government involvement in the activities of individuals out West, the Harvey family would seem to be a much more sympathetic cause célèbre than Cliven Bundy. But I have a feeling Sean Hannity and some of the folks quick to back Bundy in his stand-off with the feds are not likely to be championing family values and states' rights in this setting. And, sadly, that seems too bad and a telling indication that political principles may only go so far once pot is involved.

May 2, 2014 in Criminal justice in the Obama Administration, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?

Throughout this week there has been plenty of old and new media attention given to the ugly execution that was completed in Oklahoma Tuesday night.  And Oklahoma official will likely need a number of months to sort out everything before getting its machinery of death up and running again.  But outside of Oklahoma, does anyone believe that yet another ugly lethal injection is likely to change, in any major way, the standard modern policy and litigation dynamics that now surround the administration of capital punishment in the United States?

The Oklahoma ugliness did force a few federal officials — the President and the US Senators from  Oklahoma — to finally say something about lethal injection practices that have been long discussed and litigated in state and federal courts nationwide.  But comments by federal officials, as well as those by state officials in Oklahoma and elsewhere, as well as by the well-known advocates in the pro- and anti-death penalty camps, seem just like another round of the usual reactions to the usual claims and concerns that arise whenever a lethal injection execution fails to go smoothly.

Lots of folks who follow these issues closely (in the pro- and anti-death penalty camps) have talked about states exploring other execution methods, but I have seen little serious discussion of that possibility among lawmakers even in the wake of the Oklahoma ugliness.  And though abolitionists are sure to use this incident as one more talking point to advocate formal repeal of the death penalty in those states that rarely execute, there is little evidence that those states which remain eager to carry out death sentences see what happened in Oklahoma as a reason to slow down the march of convicted murderers to execution chambers.

Perhaps I have grown too cynical and jaded about the state and fate of modern death penalty debates.  But even details of the ugly Oklahoma execution are still emerging, this is already feeling like old and tired news to me.  Are my instincts here wrong, dear readers?

Some recent related posts:

UPDATE So only a matter of hours after I wrote this post, the President of the United States decided to prove me wrong.  Specifically, as this Reuters report and headline highlights, it appears that Attorney General Eric Holder has a new assignment from his boss because of the ugliness in OK: "Obama to have attorney general look into botched execution in Oklahoma." Here are the details:

President Barack Obama on Friday said the botched execution of a murderer in Oklahoma raises questions about the death penalty in the United States and he will ask the U.S. attorney general to look into the situation. "What happened in Oklahoma is deeply troubling," he said....

Obama cited uneven application of the death penalty in the United States, including racial bias and cases in which murder convictions were later overturned, as grounds for further study on the issue. "And this situation in Oklahoma just highlights some of the significant problems," he said at a news conference.

"I'll be discussing with (Attorney General) Eric Holder and others to get me an analysis of what steps have been taken - not just in this particular instance but more broadly - in this area," he said. "I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues."

May 2, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"

The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:

Sex offenders are today’s pariahs — despised by all, embraced by none.  During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them.  These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found.  Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?

In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions.  At first OJPC lost badly — in both the courts of law and public opinion.  But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort.  It did so by borrowing an idea from Professor Derrick A. Bell.

Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites.  The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education.  According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.

OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse.  Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.

Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve.  I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.

May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Thursday, May 1, 2014

You be the federal sentencing judge: what prison term for massive drug courier ... who is a 90-year-old WWII vet?

Old guyThis remarkable Detroit Free-Press article reports on a remarkable drug criminal facing a remarkable federal sentencing next week.  The piece is headlined "Convicted drug mule to spend 90th birthday in court facing sentencing," and here are the details:

An Indiana senior citizen will celebrate his 90th birthday in bizarre fashion Wednesday: getting sentenced in federal court for hauling cocaine across the country for a Mexican drug cartel. Convicted drug mule Leo Earl Sharp, though, is hoping to stay out of prison....

Sharp’s lawyer says prison is no place for his client: a frail, decorated World War II veteran who suffers from dementia.  “Labeling a war hero like Mr. Sharp a federal felon and forever tarnishing his reputation is sufficient punishment in itself; a sentence of imprisonment would be greater than necessary,” defense attorney Darryl Goldberg wrote in court documents....

The U.S. Attorney’s office has not yet filed a sentencing recommendation, but is expected to do so before Sharp’s sentencing before U.S. District Judge Nancy Edmunds. In a previous court document — Sharpe’s plea agreement — prosecutors recommended a five year prison sentence.

Sharp, of Michigan City, Ind., was arrested in 2011 during a traffic stop near Ann Arbor, where he was busted with nearly $3 million worth of cocaine in his pickup. Authorities eventually learned that the elderly pickup driver was a courier for a massive drug ring that ran a cocaine pipeline between Mexico and Detroit for several years, according to an indictment that charged 18 defendants total....

In October 2013, Sharp pleaded guilty to conspiracy to posses with intent to possess and deliver cocaine.  Under the terms of his plea agreement, the sentencing guidelines call for a 168-210 month prison sentence, although prosecutors said they would recommend five years. Sharpe’s lawyer has requested home confinement.

“When you are living on Social Security for your entire income, you are really in need of money and that’s why I did what I did at first. I didn’t think about the consequences of my actions and I made a tremendous mistake.  I should not have gotten involved and I feared for my life and my family’s lives and felt I had no choice,” Sharp explained in a report to a U.S. probation officer. Sharp also explained that he “agreed to transport money in exchange for a fee … and was later asked to carry drugs.” When he told his cohorts that he “wasn’t going to do that anymore, they put a gun to (his) head and threatened (him) and said they would kill (his family.)”...

According to the indictment, Sharp was a drug courier for two years, delivering roughly 670 kilograms of cocaine to conspirators in Michigan between 2009 and 2011. Shipments of cocaine would be received at the Arizona-Mexico border, and then driven to Michigan, where members would meet at a warehouse in Wyandotte and unload the drugs for distribution. The drug organization, records show, is a part of an international drug cartel based in Sinaloa, Mexico, and helped distribute between 100 and 300 kilograms of cocaine per month in metro Detroit from 2008 through 2011.

May 1, 2014 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (7) | TrackBack (0)

New details emerge concerning ugly Oklahoma execution

As reported in this article from The Guardian, headlined "Oklahoma inmate Tasered by prison staff on day of botched execution; Timeline report from director of Oklahoma corrections department also recommends indefinite stay of executions in the state," some interesting new details about Tuesday night's ugly execution are starting to emerge.  Here are some of the new details:

Clayton Lockett, the death-row inmate who was the subject of a botched execution by the state of Oklahoma, was Tasered by prison staff and had cut his own arm on the day of the failed procedure, according to a timeline released by the state's corrections chief on Thursday.

The interim report by the director of the corrections department, Robert Patton, found that medical staff could not find a suitable vein anywhere on his body in which to inject the lethal drugs intended to kill him and had to use his groin area. It recommends an indefinite stay of executions in Oklahoma until procedures for judicial killings in the state are completely rewritten and staff retrained. The execution of another inmate, Charles Warner, also due to have been carried out on Tuesday, has already been postponed.

"It will take several days or possibly weeks to refine the new protocols," Patton wrote in a letter to the Republican governor of Oklahoma, Mary Fallin. "Once written, staff will require extensive training and understanding of new protocols before an execution can be scheduled. I recommend asking the court of criminal appeals to issue an indefinite stay of execution." Patton said he supported an "external investigation" of Lockett's death....

The timeline released by Patton shows that just after 5am on Tuesday, Lockett had refused to be restrained when officers arrived to take him for X-rays. A correctional emergency response team (Cert) was called to use force on him, and he was Tasered at 5.50am. Three minutes later he was found to have a self-inflicted cut on his arm. At 8.15am, the wound was determined not to be serious enough to require sutures.

Oklahoma's timeline also goes into detail about what happened before and during the attempted execution. At 5.22pm, Lockett was restrained on the execution table, but a suitable vein could not be found anywhere on his body in which to insert an intravenous line. His legs and arms were rejected before a doctor examined his neck, and then finally his groin.

The timeline reveals that the insertion point was covered by a sheet "to prevent witness viewing of the groin area". The execution began at 6.23pm with the injection of the first of a cocktail of three drugs, but the intravenous line – covered by the sheet – was only checked after 6.44pm, when the blinds between the execution chamber and the viewing room were lowered.

The report says: "The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both. The warden immediately contacted the director by phone and reported the information to the director."

According to the timeline, Patton asked if enough drugs had been administered to cause death, to which the doctor replied "no". The director then asked if another vein was available to complete the execution, and if so, were there enough drugs left. The doctor answered no to both questions, the timeline reveals. The doctor reported a "faint heartbeat", and at 6.56pm, Patton called off the execution. The timeline does not detail what happened between then and 7.06pm, when Lockett was declared dead.

Some recent related posts:

May 1, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"Procedural Rights at Sentencing"

The title of this post is the headline of this notable new article by Carissa Byrne Hessick and F. Andrew Hessick.  Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems.  For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws.  By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections.

This Article challenges this discrepancy.  It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones.  As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems.  Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose.  The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

May 1, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack (0)

Two interestingly different rulings on two of the even Amendments from the Fourth Circuit

A helpful reader aleerted me to the fact that the Fourth Circuit issued some interesting criminal justice rulings yesterday.  US v. Carter, No. 12-5045 (4th Cir. Apr. 30, 2014) (available here), concerns a notable Second Amendment claim and gets started this way:

Following his conviction and sentencing for possessing two firearms while being an unlawful user of and addicted to a controlled substance (marijuana), in violation of 18 U.S.C. § 922(g)(3), Benjamin Carter appealed, contending that § 922(g)(3) infringed on his right to bear arms, in violation of the Second Amendment. We vacated the judgment and remanded the case to the district court to allow the government to substantiate the fit between § 922(g)(3) and the government’s important interest in protecting the community from gun violence.  See United States v. Carter (“Carter I”), 669 F.3d 411 (4th Cir. 2012).  After taking evidence from both sides, the district court held that the government had carried its burden in justifying the regulation of guns under § 922(g)(3), and Carter filed this second appeal.

Because we agree with the district court that the government adequately demonstrated a reasonable fit between its important interest in protecting the community from gun violence and § 922(g)(3), which disarms unlawful drug users and addicts, we now affirm.

US v. Ramirez-Castillo, No. 13-4158 (4th Cir. Apr. 30, 2014) (available here), concerns a notable Sixth Amendment claim and gets started this way:

In this appeal, we review the propriety of a prison sentence imposed subsequent to a jury trial in which the jury made two specific factual findings but never returned a guilty verdict.  Saul Ramirez-Castillo (“Appellant”) challenges his conviction and sentence for possession of a prohibited object by a federal inmate.  On December 14, 2011, Appellant was charged in a single-count indictment with “knowingly possess[ing] prohibited objects, that is, two homemade weapons,” while an inmate at a Federal Correctional Institute in Estill, South Carolina (“FCI Estill”), in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), and (c).  A jury trial was held on September 25, 2012.  At the conclusion of the evidence, the district court charged the jury with determining: (1) whether the first object at issue was a “weapon”; and (2) whether the second object at issue was possessed by Appellant. The jury answered “yes” to each question, but was never asked to determine whether Appellant was “guilty” or “not guilty” of the charged offense. Although the jury never returned a guilty verdict, the parties proceeded to sentencing on February 21, 2013.  Appellant was sentenced to 33 months’ imprisonment, to be served consecutively to his prior undischarged term of imprisonment of 66 months.

Because we conclude the district court violated Appellant’s right to have a jury determine his guilt beyond a reasonable doubt, we vacate Appellant’s conviction and sentence, and we remand the case to the district court.

I cannot help but find a bit of functional irony in the reality of the Carter and Ramirez-Castillo results: an illegal alien possessing weapons in federal prison prevails on his Sixth Amendment jury rights claim, while an American marijuana user in his home loses in his Second Amendment gun rights claim.

May 1, 2014 in Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (3) | TrackBack (0)

Sampling of reactions and commentary in wake of Oklahoma's execution problems

Thanks largely to coverage and links provided by How Appealing and The StandDown Texas Project, I can do a quick sample of some of the reactions and commentary emerging this week in response to Oklahoma's ugly execution:

May 1, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

DEA head tells Senate DEA supports "scientific research efforts" concerning marijuana

As reported in this Washington Post article, headlined "DEA chief says marijuana-trafficking spiking in states near Colorado," the head of the Drug Enforcement Agency testified in Congress yesterday and expressed concerns about marijuana legalization and expressed support for mandatory minimum drug sentences:

Administrator Michele Leonhart said the DEA is troubled by the increase in marijuana trafficking in states surrounding Colorado and worries that the same phenomenon could be repeated around Washington state, where recreational marijuana is expected to be sold legally soon. In Kansas, she said, there has been a 61 percent increase in seizures of marijuana from Colorado.

Speaking to the Senate Judiciary Committee, Leonhart said the softening of attitudes nationwide about the risk of marijuana has confirmed some of the agency’s fears. “The trends are what us in law enforcement had expected would happen,” she said. “In 2012, 438,000 Americans were addicted to heroin. And 10 times that number were dependent on marijuana.”...

DEA officials have expressed frustration privately about the legalization of marijuana by Colorado and Washington state, where local officials consider the change an opportunity to generate tax revenue and boost tourism. But in January, James. L. Capra, the DEA’s chief of operations, called marijuana legalization at the state level “reckless and irresponsible,” and warned that the decriminalization movement would have dire consequences. “It scares us,” he said during a Senate hearing. “Every part of the world where this has been tried, it has failed time and time again.”...

On Wednesday, Leonhart spoke about why she thinks marijuana is dangerous. She said that marijuana-related emergency-room visits increased by 28 percent between 2007 and 2011 and that one in 15 high school seniors is a near-daily marijuana user. Since 2009, she said, more high school seniors have been smoking pot than smoking cigarettes....

Leonhart also spoke out in support of mandatory minimum sentencing for drug crimes, an issue Holder has highlighted recently as part of his initiative to reduce prison crowding and foster equity in criminal sentencing. Holder has instructed his 93 U.S. attorneys to use their discretion in charging low-level, nonviolent criminals with offenses that impose severe mandatory sentences.

Leonhart, in response to a question from Sen. Charles E. Grassley (R-Iowa), said: “Having been in law enforcement as an agent for 33 years [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work at the DEA, mandatory minimums have been very important to our investigations. We depend on those as a way to ensure that the right sentences equate the level of violator we are going after.”

Though the press coverage of the DEA chief's remarks suggest she is continuing the standard drug war posture of all modern administrations, her prepared testimony (available here) included thes three notable sentences about the DEA's support for medical marijuana research:

The National Institute on Drug Abuse (NIDA) and other components of the National Institutes of Health are conducting research to determine the possible role that active chemicals in marijuana, like tetrahydrocannabinol, cannabidiol, or other cannabinoids may play in treating autoimmune diseases, cancer, inflammation, pain, seizures, substance use disorders, and other psychiatric disorders.  DEA supports these, scientific research efforts by providing Schedule I research registrations to qualified researchers.  In fact, DEA has never denied a marijuana-related research application to anyone whose research protocol had been determined by the Department of Health and Human Services to be scientifically meritorious.

Perhaps these kinds of statements from DEA in support of "scientifically meritorious" medical marijuana research are not uncommon.  Still, these sentences struck me as notable and telling in the context of the DEA chief's many other anti-marijuana-legalization comments.

May 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Wednesday, April 30, 2014

Montana Supreme Court orders resentencing in controversial rape case

As reported in this AP article, a "former high school teacher who served one month in prison after being convicted of raping a 14-year-old student faces more time behind bars after the Montana Supreme Court ruled Wednesday that his original sentence was too short." Here is more about a seeming just resolution to a high-profile and controversial state sentencing case:

Justices in a unanimous ruling ordered the case of Stacey Dean Rambold assigned to a new judge for re-sentencing. The decision means Rambold must serve a minimum of two years in prison under state sentencing laws, Yellowstone County Attorney Scott Twito said.

The high court cited, in part, the inflammatory comments of the sentencing judge, District Judge G. Todd Baugh, who drew wide condemnation for suggesting that the victim shared some responsibility for her rape. Baugh said during Rambold's sentencing in August that the teenager was "probably as much in control of the situation as the defendant." He later apologized....

The defendant was a 47-year-old business teacher at Billings Senior High School at the time of the 2007 rape. The victim, one of his students, killed herself while Rambold was awaiting trial. Rambold's sentence had been appealed by the state Department of Justice. Attorney General Tim Fox said the Supreme Court's decision had "rebuffed attempts to place blame on a child victim of this horrible crime."

Under state law, children younger than 16 cannot consent to sexual intercourse. Rambold's attorneys insisted in court filings that the original sentence was appropriate, and cited a "lynch mob" mentality following a huge public outcry over the case. Like Baugh, they suggested the girl bore some responsibility and referenced videotaped interviews with her before she committed suicide. Those interviews remain under seal by the court....

The family of victim Cherice Moralez issued a statement through attorney Shane Colton saying the court's decision had restored their faith in the judicial system. The statement urged the family's supporters to continue working together to keep children safe from sexual predators. During last year's sentencing hearing, prosecutors sought a 20-year prison term for Rambold with 10 years suspended.

But Baugh followed Lansing's recommendations and handed down a sentence of 15 years with all but 31 days suspended and a one-day credit for time served. Rambold was required to register as a sex offender upon his release and to remain on probation through 2028. After a public outcry, Baugh acknowledged the sentence violated state law and attempted retroactively to revise it but was blocked when the state filed its appeal.

The Supreme Court decision did not specify what sentence would be more appropriate. That means Rambold potentially could face even more time in prison. County Attorney Twito said he would consult with attorneys in his office and the victim's family before deciding how much prison time prosecutors will seek. The case will likely be assigned to a new judge sometime next week, Baugh said Wednesday. He said he was not surprised by the court's decision.

The judge sparked outrage when he commented that Moralez appeared "older than her chronological age." Her 2010 suicide took away the prosecution's main witness and resulted in a deferred-prosecution agreement that required Rambold to attend a sex-offender treatment program. When he was booted from that program — for not disclosing a sexual relationship with an adult woman and having an unauthorized visit with the children of his relatives — the prosecution on the rape charge was revived.

During August's sentencing, the judge appeared sympathetic to the defendant, fueling a barrage of complaints against him from advocacy groups and private citizens. It also led to a formal complaint against Baugh from the Montana Judicial Standards Commission that's now pending with the state Supreme Court. Justices said they intend to deal with Baugh separately. But their sharp criticism of the judge's actions signals that some sort of punishment is likely. "Judge Baugh's statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice," Justice Michael Wheat wrote. "There is no basis in the law for the court's distinction between the victim's 'chronological age' and the court's perception of her maturity."

The full Montana Supreme Court decision is available at this link.

Prior related posts:

April 30, 2014 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Notable new data on crime, punishment and mass incarceration

This interesting new commentary by Eduardo Porter in the New York Times Business section, headlined "In the U.S., Punishment Comes Before the Crimes," combines the standard modern US story of mass incarceration with some notable new data suggesting we might be able to have less violent crime and less punishment. Here are excerpts:

Few things are better at conveying what a nation really cares than how it spends its money. On that measure, Americans like to punish. The United States spent about $80 billion on its system of jails and prisons in 2010 — about $260 for every resident of the nation. By contrast, its budget for food stamps was $227 a person.

In 2012, 2.2 million Americans were in jail or prison, a larger share of the population than in any other country; and that is about five times the average for fellow industrialized nations in the Organization for Economic Cooperation and Development. The nation’s unique strategy on crime underscores the distinct path followed by American social and economic institutions compared with the rest of the industrialized world.

Scholars don’t have a great handle on why crime fighting in the United States veered so decidedly toward mass incarceration. But the pivotal moment seems to have occurred four decades ago. In 1974, the criminologist Robert Martinson published “What Works? Questions and Answers About Prison Reform.” Efforts at rehabilitation, it concluded, were a waste of time....

Crime was rising in the 1960s and 1970s, alarming the public and increasing the risk to politicians of appearing “soft” on crime. The decline in manufacturing employment, once the backbone of many urban economies, wasn’t helping. Later, in the 1980s and ’90s, crack cocaine became a scourge of the nation’s inner cities.

But as Steven Raphael of the University of California, Berkeley, and Michael A. Stoll of the University of California, Los Angeles, note in their book “Why Are So Many Americans in Prison?,” what drove up imprisonment rates was not crime but policy. If rehabilitation was out of reach, the thinking went, all that was left was to remove criminals from society and, through harsh sentencing, deter future crime.  From 1975 through 2002, all 50 states adopted mandatory sentencing laws, specifying minimum sentences. Many also adopted “three strikes” laws to punish recidivists. Judges lost the power to offer shorter sentences.

And the prison population surged. Four decades ago, the correctional population in the United States was not that dissimilar from the rest of the developed world. Less than 0.2 percent of the American population was in a correctional institution. By 2012, however, the share of Americans behind bars of one sort or another had more than tripled to 0.7 percent.

Bruce Western of Harvard suggests a specific American motivation, which sprang to some degree from the victories of the civil rights movement. “The crime debate was racialized to an important degree,” Professor Western told me. “The anxieties white voters felt were not just about crime but about fundamental social changes going on in American society.”

Today, a little under half the state and federal prison population is black. The Bureau of Justice Statistics estimates that a black boy born in 2001 had a 32.2 percent chance of doing time behind bars. Growing inequality, too, appears to have played a role. As Devah Pager of Harvard told me: “There is something to the idea that the more distant the rich become to the poor, the easier it is to impose policies that are more punitive than others.”...

The United States had another singularity: a comparatively small welfare state that struggled to address social and economic dislocation. “The criminal justice system became the only effective institution that could bring order and manage urban communities,” Professor Pager said. Prison, according to Professor Western, “became a last resort for a whole variety of social failures.” Whether it is caused by problems with mental health, drug abuse or unemployment, he said, “all the people that slip through the safety net and end up in crime end up in the prison system.”

What did we get from this? Crime rates have fallen by almost half since 1990, to the lowest level since the early 1970s. But that may have little to do with mass incarceration. Demographic trends — there are simply fewer young men around — help explain much of the decline. Some states, like New York, have managed to reduce crime even while cutting the prison population through better policing.

The United States still suffers higher rates of violent crimes than European countries that have lighter sentencing policies. In 2012, the United States had five intentional homicides for each 100,000 people. In Canada, the rate was 1.8. In Australia, 1.2. Mass imprisonment not only suffers from diminishing returns. After a certain point, it might actually increase crime.

Indeed, a growing body of research has concluded that the costs of the strategy are much steeper than prisoners’ room and board. Anna Aizer of Brown University and Joseph J. Doyle Jr. of the Massachusetts Institute of Technology found that putting a minor in juvenile detention reduced his likelihood of graduating from high school by 13 percentage points and increased his odds of being incarcerated as an adult by 23 percentage points.

The impact of incarceration on a former inmate’s future life is difficult to disentangle. Still, a report by Mr. Western and Becky Pettit of the University of Washington suggested that serving time reduced men’s hourly wage by 11 percent and annual employment by nine weeks. More than half of inmates have minor children. Their children are almost six times as likely to be expelled or suspended from school. Family incomes fall 22 percent during the years fathers are incarcerated.

On Wednesday, the National Academy of Sciences is unveiling a report on the causes and consequences of American mass incarceration. On Thursday, the Brookings Institution’s Hamilton Project will present its evaluation, alongside an analysis by Mr. Raphael and Mr. Stoll, which suggests that less imprisonment might not produce more crime.

California — which had to release tens of thousands of prisoners in 2011 and 2012 to reduce prison crowding — offers a perspective into what life might be with a more lenient approach. According to calculations by Professors Raphael and Stoll, there were 1.2 more auto thefts for every prison year not served. Violent crime wasn’t affected at all.

Extrapolating to a national scale, they estimated that reducing the imprisonment rate by 20 percent would lead to 121 new property crimes for every 100,000 Americans, a 5 percent increase over 2012. This is a price American voters, and their elected officials, might be willing to pay — especially if they can save money on prisons....

In Washington, a bipartisan group of senators — as varied as the Texas Republican Ted Cruz on the right to Patrick Leahy, the Vermont Democrat, on the left — are supporting a bill to lighten sentences for low-risk drug offenders. These changes could turn around the imprisonment juggernaut. After rising relentlessly for three decades, the nation’s incarceration rate hit a peak in 2008 and started gradually to decline. In 2011 and 2012, the total correctional population actually shrank slightly. We might spend the savings on food stamps.

April 30, 2014 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)

Ugly Oklahoma execution leading to calls for national moratorium

Not surprisingly, the failing of government agents in Oklahoma to effectively and efficiently carry out a sentence of death yesterday (basics here) is now prompting new calls for a mortorium on all executions around the country.  This lengthy new Washington Post article, headlined "Botched Oklahoma execution reignites death penalty debate," provides lots of details about last night's dysfunction in Oklahoma's machinery of death and the early reactions thereto. Here are the basics:

Tuesday night’s botched execution in Oklahoma, which resulted in an inmate’s writhing death from a heart attack 43 minutes after he received what was supposed to be a lethal injection, was just one in a series of bungled execution attempts the past few years. It’s prompting calls for a moratorium on capital punishment from death penalty opponents....

Patton told reporters Lockett’s vein line had “blown.” When asked what he meant, Patton said the vein had “exploded.”  

Soon afterward, an alarmed Oklahoma Gov. Mary Fallin stayed for 14 days the other execution that was scheduled for Tuesday night....  “I have asked the Department of Corrections to conduct a full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution of Clayton Derrell Lockett,” Fallin said. “I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed.”

Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma, also called for an investigation as well as an immediate moratorium on all executions in the state, saying, “In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world.”  And National Coalition to Abolish the Death Penalty responded in a statement: “This night will be a catalyst for those aggrieved and outraged to continue to fight to abolish the death penalty in Oklahoma and every other state in America.”

Executions have become increasingly difficult for states to carry out over the past two years because of similar incidents....  These controversies have begun a whole new phase in the decades-long struggle over capital punishment.  For years, opponents of the death penalty fought about its fundamental fairness under the Constitution.  When they lost that fight, they attacked the capacity of the criminal justice system to actually mete out the death penalty reliably and without racial bias. They lost that fight, too, in the 1980s.  

Now the battle concerns not who dies, but how they die, and the competence of states to carry out executions humanely.  The visibility and drama of Oklahoma’s trouble Tuesday night is likely to intensify that conflict, though, there has been no doubt about the guilt of these two condemned men.  Lockett, 38, was convicted of shooting a teenager and watching as she was buried alive.  Warner, 46, was convicted of raping and murdering his girlfriend’s 11-month-old baby.  Both were set to be executed Tuesday, Lockett at 6 p.m. Central time and Warner at 8 p.m.

Lockett’s execution was halted when it appeared the lethal injection administered to him was ineffective.   Contrary to the description from media eyewitnesses, officials said he remained unconscious and passed away in the execution chamber at 7:06 p.m. “There was some concern at that time that the drugs were not having that [desired] effect, and the doctor observed the line at that time and determined the line had blown,” Patton said in a news conference. “After conferring with the warden, and unknown how much drugs went into him, it was my decision at that time to stop the execution.”  Still, 43 minutes after the first injection, Lockett suffered a heart attack and died....

After Tuesday’s failure, Lockett’s attorney David Autry questioned the amount of the sedative, midazolam, that was injected, saying he thought the 100 milligrams called for in the Oklahoma’s execution protocol was “an overdose quantity.”  He said he was also skeptical of the department’s determination that Lockett’s vein had failed. Tuesday was the first time the state had administered midazolam as the first drug in its execution protocol.  

Earlier this year, the state attorney general’s office announced that a deal to obtain pentobarbital and vecuronium bromide, a muscle relaxer, had fallen through, and Lockett and Warner’s executions were delayed.  The new protocol was identified in court papers and included the combination of midazolam and hydromorphone....

Regarding Warner’s scheduled execution, federal public defender Madeline Cohen, one of his attorneys, told the Washington Post, “Oh, we will be pursuing further action.”

No matter what is revealed during the "full review of Oklahoma’s execution procedures" ordered by Oklahoma's Governor, I would be very surprised if Oklahoma succeeds in going forward with Warner's execution in the next two weeks. And I have seen this morning press releases from the ACLU and the NACDL urging a national moratorium on executions nationwide in response to what happened in Oklahoma last night. I doubt that any other state Governors will be quick to announce execution moratorium in states that regularly carry out death sentence, but I also doubt that various groups will let up on the pressure to halt executions.

According to this DPIC "Upcoming Executions" page, there are serious execution dates scheduled in May in the states of Texas, Missouri and Ohio. Notably, as reported in this local article (which I will discuss in a later post), clemency has now been recommended in the Ohio case, and I predict it will be granted. So the states to watch real closely for execution debate an action over the next month are Missouri and Texas.

Recent related posts:

April 30, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

New survey suggests that "medical community supports the use of medical marijuana"

WebMDIn many prior discussions of modern marijuana reform, frequent (but now MIA) commentor Bill Otis was often very quick to highlight that the American Medical Assocation has expressed serious concerns and considerable reservations about the potential health impact of legalizing marijuana.  I largely agree with Bill that the medical community should have a significant role and voice in the on-going national marijuana reform debate, and thus I found notable this new FOXBusiness article headlined "Survey: 53% of Doctors Support National Legalization of Medical Marijuana."  Here are the details:

Medical marijuana might be legal in 21 states, but it is still not widely prescribe by doctors across the country — despite the majority of doctors and patients supporting its use. According to a survey by online medical resource WebMD, 69% of doctors and 52% of patients polled say marijuana delivers benefits.

“Regardless of past restrictions, a majority of patients and doctors see marijuana as delivering real benefits to treat patients,” says Michael Smith, chief medical editor at WebMD in the research report. “Uncertainty is the next largest response, with 37% of patients unsure of marijuana’s benefits versus 20% of doctors.”

Among the nearly 1,500 doctors surveyed, 82% of the physicians in favor of medical marijuana were oncologists and hematologists. What’s more, a wide majority of respondents say medical marijuana should be an option for patients. However, the support of legalized marijuana has its limits, according to the survey: 53% of doctors and 51% of consumers oppose legalizing it nationally for recreational use.

WebMD and its Medscape unit polled 3,000 consumers along with 1,500 doctors for its report. Support for medicinal use of marijuana is strong even in states where it’s illegal. According to the survey, 50% of doctors practicing in states where it’s banned say it should be legalized, while 52% of doctors practicing in states that are considering legalizing it for medicinal use support the practice. Forty-nine percent of consumers living in states where it’s not legal support legalizing medical marijuana.

Smith says the findings of the survey indicate the medical community supports the use of medical marijuana, but more studies are needed to boost doctors’ confidence as to where medical marijuana can help and where it may not. “Despite more than 20 years of anecdotal evidence about the medicinal effects of marijuana, doctors and consumers remain in search of answers,” he said in a recent press release.

The press release referenced in this article is available at this link, and it provides some more details about the survey and its results.  I also now see WebMD has this entire special section of its website providing coverage of marijuana-related issues.

Cross-posted at Marijuana Law, Policy and Reform.

UPDATE:  I am pleased to see that Bill Otis has responded to this post via a new post here at Crime & Consequences headlined "How Do You Conduct a Phony Pot Survey?" This response confirms my hope that Bill continue to engage with what I post here even though he, for reasons unexplained to me, no longer seems able or willing to comments directly in the comment section.

April 30, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (21) | TrackBack (0)

"Waiving the Criminal Justice System: An Empirical and Constitutional Analysis"

The title of this post is the title of this notable and important new paper now available on SSRN and authored by Susan Klein, Donna Lee Elm and Aleza Remis.  Here is the abstract:

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system."  Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea.

In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court — waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage.  We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm.  After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

April 30, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Tuesday, April 29, 2014

First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs

As reported in this CNN article, an "Oklahoma inmate died Tuesday evening of an apparent heart attack after authorities botched the delivery of drugs and stopped his execution.  Another execution scheduled for the same day was postponed."  Yikes.  Here are the details:

Convicted murderer Clayton Lockett was sedated and then given the second and third drugs in the protocol, Oklahoma Department of Corrections Director Robert Patton told reporters.  "There was some concern at that time that the drugs were not having the effect, so the doctor observed the line and determined that the line had blown," he said.  When asked what he meant by "blown," Patton said that Lockett's vein had "exploded."

"I notified the attorney general's office, the governor's office of my intent to stop the execution and requested a stay for 14 days for the second execution scheduled this afternoon," said Patton, referring to the execution of Charles Warner.

Lockett later suffered what appeared to be a heart attack and died, the director said. Gov. Mary Fallin issued an executive order granting a stay for Warner and ordered an investigation.  Lockett remained unconscious after the drugs were administered and died in the execution chamber at 7:06 p.m., according to her office.

"I have asked the Department of Corrections to conduct a full review of Oklahoma's execution procedures to determine what happened and why during this evening's execution of Clayton Derrell Lockett," Fallin said in a statement.  "I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed."...

"Something went horribly awry," Warner's attorney told CNN late Tuesday.  "Oklahoma cannot carry out further executions until there's transparency in this process," said Madeline Cohen.

Recent related posts:

UPDATE:  As he does so well, Howard Bashman in posts at How Appealing here and here effectively collects lots of press reports on Oklahoma's execution struggles, which seems sure to be the biggest US death penalty story over the next few days and weeks (and months and years, perhaps).

April 29, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9) | TrackBack (0)

Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion

April 29, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Double execution scheduled for tonight in Oklahoma drawing international interest

As reported in this Tulsa World article, "Oklahoma's rare dual execution Tuesday is drawing international attention, with reporters from Japan, the United Kingdom and the Netherlands requesting to serve as media witnesses, prison officials say." Here is more about tonight's plans in the Sooner state:

Barring any last-minute court rulings in their favor, inmates Clayton Lockett and Charles Warner will be executed Tuesday at 6 p.m. and 8 p.m., respectively, at the Oklahoma State Penitentiary in McAlester. Jerry Massie, a spokesman for the state Department of Corrections, said 17 news organizations, including 12 from Oklahoma, have requested media credentials to cover the executions.

Media outlets from outside the state requesting to witness the executions are The New York Times, The Guardian, Esquire Magazine UK, Kyoto (Japan) News and NRC, a newspaper based in the Netherlands. The Department of Corrections allows up to 12 media witnesses, with preference given to The Associated Press and to Oklahoma media outlets, including the Tulsa World, The Oklahoman and local newspapers where the crimes occurred. Because more than that have requested credentials, the DOC likely will hold a lottery to select the media witnesses for each execution, Massie said.

Lockett was sentenced to die for killing 19-year-old Stephanie Neiman of Perry during a botched home-invasion robbery in 1999. Warner received the death penalty for raping and killing 11-month-old Adrianna Waller in Oklahoma City in 1997.

The executions have drawn wide interest following a complicated legal battle by the inmates to throw out the state's execution-secrecy law. The law shields the identities of those who supply and administer drugs during the execution process. States including Oklahoma have passed such laws in reaction to shortages of execution drugs....

Two executions on the same day weren't a rare occurrence in Oklahoma in the 1930s. The last double execution was June 11, 1937. On four separate occasions, Oklahoma put three men to death on the same day. On Sept. 20, 1935, it took only 14 minutes to execute three self-confessed murderers in the electric chair at the Oklahoma State Penitentiary, according to Tulsa World archives.

Massie said the prison has developed procedures for the dual execution, including having more staff on hand than usual. Both inmates will be moved into single adjoining cells next to the death chamber on Tuesday morning, he said.

This New York Times article about the two planned executions includes this account of why tonight's activities have drawn more than the usual modern execution attention:

The planned executions of Clayton D. Lockett, 38, and Charles F. Warner, 46, dramatized the growing tension nationally over secrecy in lethal injections as drug companies, saying they are fearful of political and even physical attack, refuse to supply drugs, and many states scramble to find new sources and try untested combinations. Several states have imposed secrecy on the suppliers of lethal injection drugs, leading to court battles over due process and the ban on cruel and unusual punishment.

“Tonight, in a climate of secrecy and political posturing, Oklahoma intends to kill two death row prisoners using an experimental new drug protocol, including a paralytic, making it impossible to know whether the executions will comport with the Eighth Amendment’s ban on cruel and unusual suffering,” said Madeline Cohen, a federal public defender for Mr. Warner. “We have serious questions — were these drugs imported, are they counterfeit, what is the expiration date, are they tainted?”

But the appeals were over as Gov. Mary Fallin, expressing the sentiment of many here, said: “Two men that do not contest their guilt in heinous murders will now face justice.”

Recent related posts:

April 29, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"

Judge-Jed-Rakoff-400x400The title of this post is drawn from this report via USC News summarizing a provocative recent speech given by Judge Jed Rakoff (which a kind reader alerted me to). Here are excerpts:

Rakoff, who sits on the Federal District Court in Manhattan, N.Y., spoke recently at the USC Gould School of Law’s Neiman Sieroty Lecture on “Why Innocent People Plead Guilty.”...

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said. Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

What can be done? Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated. “But to be frank, I don’t think, politically, either of those things is going to happen. … When it comes right down to it, I think the public really wants these high penalties, and that’s because when these harsh penalties were imposed [in the 1980s], the crime rate went down.”

Another more controversial solution is to allow judicial involvement in the plea bargain process. A judge who is not involved in the case could take a first pass at an agreement, working with prosecutors and defense attorneys. “What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

Until extraordinary action is taken, Rakoff said little will change. “We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

April 29, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (15) | TrackBack (0)

Insider "Joe FedCourt" rails against federal "defenders sucking up all the oxygen" in budget fights

Late last week, I received a remarkable email from someone calling himself/herself "Joe FedCourt" which complained about the title I had given to a link in my Resources side-bar.  Because the email revealed from an apparent insider some serious tension between federal court personnel and federal defenders (as well as non-Artile III judges), I requested and received permission to reprint the lengthy email from "Joe FedCourt" in full.  Here it is:

I work in the Federal Courts, and the judge I serve is on a prominent committee of the Judicial Conference.  As I can't talk to people like you without permission, I have to go this route.

Look, there is no such thing as the "US Office of Defender Services". That doesn't exist anymore. Just under a year ago the Conference and the AOUSC realized you can't have non-court entities running around undermine the credibility of the Article III judges. So they created 3 departments of the AOUSC. That way magistrates, Defenders, and probation/pretrial types have to work through another layer of oversight and supervision before they reach the Director and the Conference. Otherwise their parochial concerns take away from the real work of the Judicial Conference.

So in this case, "Office of Defender Services" is now called the "Defender Services Office WITHIN the Department of Program Services. So you should write:

"Administrative Office of the US Courts, Department of Program Services, Defender Services Office".

We have enough trouble in the Judiciary -- just on Friday we saw an article on the FRONT PAGE of the WASHINGTON POST discussing a magistrate "revolt" regarding what criminal investigators may keep when they procure evidence under a warrant.  As if it is their place to step in and question ANY Article III judge.  This only follows upon what we have seen this past year, with Defenders running to the Hill, talking to DOJ about clemency, and discussing indigent defense with the press.  The mechanics of how justice is administered in this country, in terms of the allocation of resources and the scope of jurisdiction, is exclusively the purview of the Judicial Conference of the United States and should be recognized as such.  The Conference could have gotten more money for judges' chambers and court staff if it weren't for people like the Defenders sucking up all the oxygen last summer and fall!  Not to mention magistrates undermining confidence in the Conference as people wonder who the hell is running the Judiciary!!!

I sound bitter, but really.  How do you think it makes a member of, say, the Budget Committee of the Judicial Conference feel to be asked, for example, why Defenders can't have varying caseloads when judges do?

How does a member of Congress even ASK such a question, blindsiding a committee member who thinks the topic will be emergency judicial vacancies?  Is it not the EXCLUSIVE purview of the Judicial Conference to determine whether all defendants should get a Chevy or a Yugo level of defense, without defenders whining so much that the Hill robs Clerk Peter's travel budget for circuit learning opportunities to give to Defender Paul's investigators.  Especially when those investigators are almost always just reinventing the wheel???  Doesn't the Judicial Conference have far more important matters to consider than whether some guy heading for Leavenworth should get 21 or 18 years?

So please follow Judicial Conference policy.  There is no "US Office of Defender Services" for an administrative organ of a program wholly subservient to the Federal Judiciary. It's about time these well-quoted Defenders learned that, not to mention others who think they are mentioned in the Constitution (hint -- you're not, bankruptcy judges). You can help.

Wowsa!  Critically, I neither endorse these comments nor have the kind of insider knowledge to know if these complaints are unique to just Joe FedCourt or instead represent broader views among those who work directly with Article III judges.  For that reason and others, I am quite eager to (1) hearreactions to this Joe FedCourt rant and/or (2) report on additional perspectives and information concerning any serious on-going tensions among various key players in the federal court community.

April 29, 2014 in Who Sentences? | Permalink | Comments (13) | TrackBack (0)

Ohio concludes condemned murderer experienced no pain during troubled execution

As reported in this Columbus Dispatch article, headlined "Inmate did not experience pain during execution, report says; State to continue using same drugs but in higher doses," a three-month investigation of a seemingly problematic Ohio execution has led the state to conclude on a tweak in the execution protocol is needed. Here are the details:

Ohio prison officials will use the same drugs, but in much higher dosages, as those used in the troubled execution of Dennis McGuire on Jan. 16. A report issued yesterday by the Ohio Department of Rehabilitation and Correction concluded that McGuire “did not experience any pain or distress. The massive doses of drugs given to McGuire rendered him unconscious before any of the irregular bodily movements were observed.”

Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville. It was the first time that those drugs were used in an execution in the United States.

The prison review said McGuire’s reactions were “consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function.” The report concluded: “DRC is confident that Inmate McGuire was not conscious beginning a few minutes after the drugs were administered. He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred.”

However, because of concerns about McGuire’s execution, the agency will boost the dosage of midazolam, a sedative, to 50 milligrams from 10 milligrams, and increase the dosage of hydromorphone, a powerful painkiller, to 50 milligrams from 40 milligrams. In addition, the revised policy calls for having a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”

The next execution, of Arthur Tyler of Cuyahoga County, is scheduled for May 28.

McGuire was executed for the murder of 22-year-old Joy Stewart in 1989. The condemned man’s attorneys warned in advance that using the two drugs might result in “air hunger” as his body struggled in the final death gasps. State officials dismissed that claim at the time and in yesterday’s report.

Some recent related posts on Ohio's recent controversial execution:

April 29, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3) | TrackBack (0)

Monday, April 28, 2014

"Legalizing marijuana has been good for Colorado, voters in the state say 52 - 38 percent"

The title of this post is the first line of this notable press release discussing the results of a notable new Colorado poll.  Here is more from the press release:

Legalizing marijuana has been good for Colorado, voters in the state say 52 - 38 percent, but 52 percent of voters are less likely to vote for a candidate for office who smokes marijuana two or three days a week, according to a Quinnipiac University poll released today....

Legalized marijuana has been bad for the state, Republicans say 63 - 28 percent and voters over 65 years old say 62 - 28 percent. All other listed groups say it's good for the state....

"Colorado voters are generally good to go on grass, across the spectrum, from personal freedom to its taxpayer benefits to its positive impact on the criminal justice system," said Tim Malloy, assistant director of the Quinnipiac University poll. "But if you are a politician, think twice before smokin' them if you got 'em," Malloy added.

I tend not to put too much stock in a single poll, and a lot could change concerning public opinion regarding legalized marijuana in the weeks and months ahead. But the demographic breakdown of the results in this poll are quite interesting and reveal that, relatively to the general Colorado population, independents, women and persons under 50 all most strongly believe that legalizing marijuana has been good for the state. These numbers confirm my sense that supporting legalized marijuana may now help a politician attract key swing voters more than opposing it.

Cross-posted at Marijuana Law, Policy and Reform.

April 28, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2) | TrackBack (0)

New study concludes "conservative estimate" of erroneous US capital convictions has been over 4%

As reported in this new AP article, headlined "Study: 1 in 25 death cases likely innocent," a notable new report makes a notable new claim about the number of innocent persons who have been sent to death row in the United States.   Here are the basics:

About one in 25 people imprisoned under a death sentence is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences.  And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.

From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.  But the great majority of innocent people who are sentenced to death are never identified and freed, says professor Samuel Gross of the University of Michigan Law School, the study’s lead author.

The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment.  Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.

Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis.  Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross “seems to be a reasonable way to look at these data.”  Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.

The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health.  The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said....

The study concluded that the number of innocent defendants who have been put to death is “comparatively low. ...  Our data and the experience of practitioners in the field both indicate that the criminal justice system goes to far greater lengths to avoid executing innocent defendants than to prevent them from remaining in prison indefinitely.”...

Death sentences represent less than one-tenth of 1 percent of prison sentences in the U.S., but they account for 12 percent of known exonerations of innocent defendants from 1989 to 2012. One big reason is that far more attention and resources are devoted to reviewing and reconsidering death sentences....

The study estimates that if all defendants sentenced to death remained in that status, “at least 4.1 percent would be exonerated.  We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

The full report is available via this link. The authors are Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, and the paper's official title is "Rate of false conviction of criminal defendants who are sentenced to death."

April 28, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (14) | TrackBack (0)

Is change at top of The Office of the Pardon Attorney the biggest part of DOJ's new clemency initiative?

The question in the title of this post is prompted by the subheadline of this effective article by Abby Rapoport at The American Prospect. The piece carries the main headline "Pardon Me, Mr. President?", and its subheadline makes this astute observation: "By appointing an advocate for defendants' rights as the new pardon attorney, the Obama administration has signaled it is serious about commuting drug offenses." Here is a snippet from the piece (with a few links preserved, which merits a full read:

The Department of Justice (DOJ) announced the start of a new initiative on clemency, encouraging thousands of inmates — particularly those convicted during the Drug War crackdown of the 1990s — to send in petitions to have their sentences commuted.  The new initiative offers six new criteria by which petitioners will be judged, including the following: prisoners must have served 10 years of their sentence, must not have lengthy criminal records or gang convictions, and show that they would have gotten off with a lighter sentence had they been tried today. In his more than five years in office, Obama has been the stingiest president in history when it comes to granting pardons; the new program could make him one of the most generous.

But the biggest news for criminal-justice reformers has been the administration’s appointment of a new pardon attorney to oversee the program: Deborah Leff, who spent her years at DOJ working on the Access to Justice Initiative, an agency meant to help low-income defendants get a fair hearing in court.  “Poor people often do not have access to counsel, and when they do get an attorney, that lawyer is often overworked, undertrained, undercompensated, and placed in a system that encourages a quick plea bargain and discourages carefully listening to the needs of clients,”  she wrote in an article with Melanca Clark for the American Bar Association. Those who come from the prosecutorial side of things — which is most everyone at the Department of Justice — tend to be more skeptical of the idea that convicted criminals can be reformed. But Leff's background makes her more likely to be sympathetic to requests for clemency.

“One thing about law and particularly this kind of law is that almost always people are more important than rules,” says Mark Osler, a law professor at St. Thomas University and founder of the nation’s first federal clemency clinic (I recently profiled his story in our most recent print issue). “Leff’s work within the DOJ has largely been about making sure that people who have a petition or grievance have a way to have it heard fairly.” For those hoping to see a robust clemency push, her background bodes well. The administration’s clemency criteria have plenty of wiggle room, which makes the selection of a new pardon attorney all the more significant.  The department wants petitions from applicants who are “non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels.”  Depending on how the U.S. pardon attorney exercises her discretion, an offender who grew up with gangs and was loosely affiliated with them could either be an ideal candidate for clemency or excluded altogether. Similarly, petitioners must have “demonstrated good conduct in prison”—a criterion that could include or exclude prisoners with one or two black marks on their records depending on the pardon attorney’s views....

Ron Rodgers, the U.S. pardon attorney until this week, was known for his opposition to clemency requests. Rodgers and David Margolis, the Department of Justice assistant deputy attorney general, both got blasted in a 2012 report for the dramatic mishandling of one particular petition during the Bush regime: Clarence Aaron, who received a triple life sentence for his role a drug conspiracy.

Leff’s appointment helps send a clear signal that this new initiative isn’t just lip service to the reform community, which until now hasn’t seen much action from the Obama administration.  Despite rhetoric in the 2008 election about the casualties of America’s War on Drugs, in his tenure the president had done little to help those still serving decades-long sentences.

A few of many recent and older posts concerning federal clemency practices:

April 28, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Curious SCOTUS cert calls in criminal cases continuing, though overcriminalization now on docket

Court-yates_0056I was lamenting earlier this month in this post that the Justices seem to have relatively little interest in big criminal justice issues of late (especially on sentencing fronts), though I suppose I could have reconsidered this idea after SCOTUS last week took up two new criminal cases as reported here.  Today, via this new order list, SCOTUS showcases some more curious cert pool splashing around as detailed in this post at SCOTUSblog:  

The Court on Monday granted review in two new cases; both will be decided next Term. One seeks clarification of what a home loan borrower must do in order to get out from under the mortgage because the lender allegedly failed to provide full disclosure of the loan terms (Jesinoski v. Countrywide Home Loans).

The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal investigation. At issue in Yates v. United States is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish. A fisherman convicted of destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action. The Court limited its grant to the first question raised in the petition.

The ongoing mystery of what the Court is doing with a California murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday. The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased. Presumably, that case will be listed again this week, for a twenty-first time. It has been put before the Justices in every scheduled Conference since September.

The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home. The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense....

In accepting review of the Yates case, the Court will be spelling out the scope of a law passed in the wake of the corporate scandals, particularly involving Enron Corp. A provision of that law made it a crime to interfere with a federal investigation by destroying, hiding or altering vidence. The law forbids destroying, multilating, altering, concealing or falsifying “any record, document or tangible object,” with the intent to impede or obstruct a federal investigation.

The case involves John L. Yates, a Floridian who captained a commercial fishing vessel, Miss Katie, working the waters of the Gulf of Mexico. An inspector boarded the vessel in 2000 to check for compliance with fishing regulations. While on board, he saw several red grouper fish, which appeared to him to be smaller than the 20-inch minimum size for taking that species. He measured them, and found 72 that he deemed were too small.

Yates and his crew were told to return to port, and not to disturb the catch. Yates later was charged with violating the law against destroying evidence, for allegedly ordering a crew member to throw the undersized fish overboard. The crew then replaced the discarded fish with other red grouper.

At his trial on criminal charges, including destroying evidence, Yates’ lawyers contended that the law against destroying evidence was designed only to deal with documentary evidence, and that its coverage of “tangible objects” meant to apply on to the same category. That argument failed in the trial court, and Yates was convicted of violating that provision by ordering the casting overboard of the small red grouper. The Eleventh U.S. Circuit Court of Appeals upheld his conviction, rejecting his challenge to the scope of the evidence law.

I have complained about the recent tendency of SCOTUS to take up lots of seemingly quirky criminal justice cases unlikely to have a huge impact, and then also dodging big issues like the reach and application of the Second, Sixth and Eighth Amendments in light of recent rulings. This new Yates case strikes me as another example of a seemingly quirky criminal justice case with only limited implications UNLESS some Justices were eager to make a big stink about the feds going criminally after a little fisherman.

If a majority of Justices were to develop some novel jurisprudence to help fisherman Yates prevail (and, as this local article highlights, he seems like a pretty sympathetic character), this Yates case could possibly become a very big part of on-going policy debates concerning the overfederalization and overcriminalization of seemingly small matters that arguably could and should be handled through civil means and without too much federal prosecutorial involvement.  Indeed, I suspect (and certainly hope) that this Yates case might bring out more amici from the right than from the left, largely because the big concern raised by the case is the ability for small local businesses to conduct their affairs without facing criminal prosecution for not playing nice with federal bureaucrats. 

April 28, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack (0)

Feds in NYC corruption sentencing argue 105 and 80 years necessary for white-collar defendants

An interesting white-collar sentencing scheduled for today in Manhattan is previewed in this New York Times article last week which ran under the headline "Decades in Prison Sought for CityTime Scheme." Here are the details that prompt the title of this post:

Federal prosecutors in Manhattan have asked a judge to impose sentences of 105 years, 80 years and up to 40 years on three men who the government has said became “unbelievably rich” in connection with New York City’s scandal-marred payroll modernization project known as CityTime.

The three men were convicted in a federal corruption trial last fall in Federal District Court and are scheduled to be sentenced on Monday. T he cost of the CityTime project was originally budgeted at $63 million but exploded to about $700 million, with almost all of the more than $600 million that New York City paid to its prime contractor, Science Applications International Corporation, or S.A.I.C., tainted by fraud, a federal indictment charged.

“The CityTime fraud, kickback and money laundering scheme that these defendants orchestrated, managed and operated represents one of the worst, if not the worst, financial crimes against the city,” the office of Preet Bharara, the United States attorney in Manhattan, said in a memo filed on Sunday night recommending the sentences, which it said were appropriate under the advisory sentencing guidelines.  “The need for general deterrence supports severe sentences in this case,” the office added.

The government asked the judge, George B. Daniels, to sentence Gerard Denault, 52, who was S.A.I.C.’s project manager on CityTime, to 105 years in prison.  “He used his significant talents to abuse his executive position at S.A.I.C. to an extreme degree,” two prosecutors, Howard S. Master and Andrew D. Goldstein, wrote.  “Testimony at trial from witness after witness reflected that he used his power and his intellect to intimidate and sideline anyone at S.A.I.C who stood in the way of his criminal scheme.”

Mr. Denault’s lawyer, Barry A. Bohrer, said his only comment on the government’s request was “not one that is printable.”  He has requested a five-year sentence for his client.

Mr. Bharara’s office said in the memo that another defendant, Mark Mazer, 50, a former consultant to the city’s Office of Payroll Administration, had “abused his power as the city’s project manager to line his own pockets to a breathtaking degree rarely seen in any fraud or kickback case,” taking about $30 million over five years.  The prosecutors’ office asked that he be sentenced to 80 years.

Mr. Mazer’s lawyer, Gerald L. Shargel, who is seeking a five-year sentence for his client, said in a phone interview on Monday that it was the government’s request that was “breathtaking,” and that such sentences “should be reserved for the worst offenders among us.” Mr. Shargel said that the large amounts of money in the case had helped to inflate the recommended sentences.  “Just because the guidelines give the prosecutors the authority to argue for this sentence, it doesn’t mean that it’s the right thing to do,” Mr. Shargel said. “What do you give a murderer — 160 years?”

Without knowing all the facts of these cases, I cannot comment on whether these fraud defendants are really among the truly "worst of the worst" of white-collar criminals.  But I can comment that federal prosecutors, at least in this case, seem to not be really committed to helping the district judge here determine what sentence would truly be "sufficient but not greater than necessary" to achieve federal sentencing goals under 18 USC 3553(a).

Given that it would be remarkable if the defendants here would be able to live even half as many years in prison as the prosecutors are urging, it is obviously ludicrous to assert that a 105-year sentence is not greater than necessary for a 52-year-old defendant.  But it seems that a representative of the US government is going to stand up in to federal court today and make such a ludicrous sentencing claim.

UPDATE: The headline of this AP article about the now-completed sentencings in this matter reports the basic outcome: "NYC payroll scandal defendants each get 20 years."

April 28, 2014 in Booker in district courts, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack (0)