Sunday, November 24, 2013

"'Cocaine congressman' received the right sentence"

The title of this post is the headline of this new commentary by Clarence Page appearing in the Chicago Tribune. Here are excerpts:

"Cocaine Congressman" Trey Radel, as headline writers have rebranded him, voted to allow states to drug test all food stamp recipients. Congress, it turns out, should have drug-tested Radel....

Radel became the first sitting congressman in 31 years, according to The Associated Press, to plead guilty to a misdemeanor drug-possession charge.

FBI and Drug Enforcement Administration agents swooped in to arrest him after he bought 3.5 grams of cocaine for $250 in a late October sting operation in Washington's fashionable DuPont Circle neighborhood. Charging documents described Radel as having a frequent-buyer reputation in the neighborhood. After Radel pleaded guilty in District of Columbia Superior Court, he was sentenced to a year of probation and will undergo substance abuse treatment in Florida.

House Republicans did not rush to escort Radel out the door, even though he reportedly waited three weeks before telling them about his bust. Speaker John Boehner said before Radel's sentencing that the matter should be left up to the courts, Radel, his family and his constituents.

Indeed, it would hardly be the first time that a politician continued to serve and potentially be re-elected after a misdemeanor conviction. Voters can be very forgiving of lawbreaking politicians.

"Today, I checked myself into a facility to seek treatment and counseling," Radel said in a statement last week. "It is my hope, through this process, I will come out a better man." I wish him luck. Unlike his more outraged critics, I don't think Radel should have been sent to jail. Quite the opposite, I think his case offers a good example of why a lot of nonviolent, first-arrest drug offenders shouldn't be in jail.

Contrast his case, for example, with another high-profile District of Columbia case, the arrest of then-Mayor Marion Barry for taking a hit of crack cocaine during an FBI hotel room sting in 1990. He was sentenced to six months in a federal prison. His sentence could have been worse if the video had not provided so much evidence to back the mayor's argument that he was a victim of FBI entrapment.

The fact that Barry is black and Radel is white doesn't mean that racism played a role in either case. But the differences in their sentences illustrate a persistent problem: Despite recent reforms, a racial disparity persists between the minimum sentences for crimes involving crack and powder cocaine. The Fair Sentencing Act that Congress passed in August of 2010 reduced the 100-to-1 disparity between crack and powder cocaine that was created during the anti-crack uproar of the 1980s. But it still remains way too huge at about 18-to-1. Fairness should never end at the color line.

Radel is fortunate to have been sentenced in D.C., where enlightened attitudes led to a special "drug court" in 1993 that is designed to funnel low-level addicts into rehab instead of long-term jail time. With prison costs skyrocketing — even after overall crime rates declined in the mid-1990s — even states with reputations for tough justice are turning to alternatives to prison for nonviolent drug offenders. Drug addiction should be handled as a disease, not a crime. Trey Radel knows.

Recent related post:

November 24, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (11) | TrackBack (0)

Is there any obvious sentencing fallout after nuclear option used in Senator filibuster war?

Dr-strangelove-be-optimisticI am intrigued that a group of Senators finally triggered the (foolishly-named) nuclear option in an effort to preclude the persistent use of filibuster practices to delay and/or thwart some presidential nominees.  And though I know it is hard for folks to put aside short-term political realities that prompted these reforms, I am hopeful readers might here talk about whether they think this development could be good or bad (or perhaps just inconsequential) for the long-term development of sentencing jurisprudence.

This CNN article, which is headlined "5 ways life changes in the Senate after nuclear option on filibusters," predicts "more new judges" as one likely consequence, and that seems about right. Others are saying we should expect to see more ideological federal judges, too. Assuming this is all true, do folks think more new and more ideological federal judges will be good or bad for the future of sentencing jurisprudence?

I tend to be an optimist by nature, so I am inclined to assert that more new and more ideological federal judges could lead to more thoughtful skepticism about lots of sentencing jurisprudence. But maybe I am now just looking way too hard for a sentencing silver lining in the mushroom cloud that I suppose now is hanging over the Senate chamber after Harry Reid pushed his nuclear button.

November 24, 2013 in Who Sentences? | Permalink | Comments (17) | TrackBack (0)

Saturday, November 23, 2013

Corrupt Massachusetts lab analyst gets (significant? inadequate?) state prison term for misdeeds

As reported in this Boston Globe article, "Annie Dookhan, the drug analyst who tampered with evidence and jeopardized tens of thousands of criminal convictions, was sentenced Friday to three to five years in state prison, closing a sorrowful chapter for the woman at the center of a scandal that continues to plague the state’s criminal justice system." Here is more:

The 36-year-old mother of a disabled child, whose marriage fell apart in the months after the scandal, softly pleaded guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence. She must also serve two years of probation and undergo mental health counseling, if needed....

Attorney General Martha Coakley, whose office prosecuted the case, said in an interview later that the conviction of Dookhan was only one part of an ongoing investigation into the quality of drug testing at the Hinton drug lab, but she said it was needed to bring some accountability for her crimes. “Certainly one of the victims in this case, and the actions of Annie Dookhan, is the public trust,” Coakley said.

Dookhan’s lawyer, Nicolas A. Gordon, would not comment after Friday’s hearing. He had asked Suffolk Superior Court Judge Carol S. Ball to sentence Dookhan to no more than a year in prison.

Dookhan admitted to filing false test results and mixing drug samples, and to later lying under oath about her job qualifications, but she said it was only to boost her work performance.

Prosecutors had asked that Dookhan serve 5 to 7 years in prison, but Ball kept to her earlier decision that she would sentence the chemist to 3 to 5 years, finding that, while Dookhan was a “broken person who has been undone by her own ambition,” the consequences of her crimes were still “nothing short of catastrophic.”

State Representative Bradley H. Jones Jr., the House Republican leader, expressed disappointment with the sentence. “You walk away feeling this is really inadequate to what has happened, and the ramifications that it has had, and is going to have, on the criminal justice system,” Jones said. “Three to five years is not adequate.”...

By all accounts, the scandal at the Hinton laboratory in Jamaica Plain is the worst to hit the state’s criminal justice system in recent memory, and is still deepening. Officials have determined that Dookhan was involved in more than 40,000 cases at the lab from 2003-2012, possibly tainting the integrity of the evidence in those cases.

Defendants have asked that their convictions be tossed, or that they be released from prison as they seek new trials. Public safety officials feared their release would create a crime wave. So far, the state has spent $8.5 million reviewing the drug cases and holding special hearings for defendants, and officials have budgeted an additional $8.6 million, expecting the costs to increase.

As of Nov. 5, according to the state Trial Court, 950 people have been given special Superior Court hearings in eight counties, from Worcester east. Overall, through Nov. 5, the courts have held 2,922 hearings — in addition to their regular caseload — for defendants asking that their cases be dismissed or that they be released from jail.

By August, a year after the extent of Dookhan’s crimes were first discovered, a Globe review of court records showed that more than 600 defendants had convictions against them erased or temporarily set aside, or they have been released on bail pending new trials. Of those, at least 83 defendants — about 13 percent of the total — had been arrested and charged with other crimes. In one case, a Brockton man released from prison last fall because Dookhan was involved in his case was arrested for allegedly killing a man in a drug dispute in May.

Cape & Islands District Attorney Michael O’Keefe said that the lab scandal has burdened district attorneys and the courts. At times, the courts have had to release prisoners or grant them new trials “in the interests of fair justice,” he said. “It’s something that we’re going to be trying to correct for quite a period of time,” O’Keefe said.

But he and defense lawyers also agreed that the woes will not end with Dookhan’s sentence. Defense lawyers have called on the state Trial Court to set up an independent special court system to review evidence that was handled not only by Dookhan, but by anyone from the Hinton laboratory. The lab, which was closed by State Police in 2012, handled more than 190,000 cases since the early 1990s.

November 23, 2013 in Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (18) | TrackBack (0)

Another notable white-collar defendant gets another below-guideline federal sentence

This New York Times article, headlined "Ex-Credit Suisse Executive Sentenced in Mortgage Bond Case," reports on a notable federal sentenced handed down yesterday:

A former top executive at the Credit Suisse Group was sentenced to two and a half years in prison on Friday for inflating the value of mortgage bonds as the housing market collapsed. The prison term makes the executive, Kareem Serageldin, one of the most senior Wall Street officials to serve time for criminal conduct during the financial crisis.

Wearing a dark suit and blue tie, Mr. Serageldin remained stoic as Judge Alvin K. Hellerstein of the United States District Court in Manhattan handed down the sentence, which was less than the roughly five-year sentence called for by nonbinding sentencing guidelines. Judge Hellerstein showed mercy on Mr. Serageldin in part because of what he said was a toxic culture at Credit Suisse and its rivals.

“He was in a place where there was a climate for him to do what he did,” the judge said. “It was a small piece of an overall evil climate inside that bank and many other banks.”

A spokesman for Credit Suisse disagreed with the judge’s remarks, noting that when regulators decided not to charge the bank in connection with Mr. Serageldin’s actions, they highlighted the isolated nature of the wrongdoing, the bank’s immediate self-reporting to the government and the prompt correction of its results.

Mr. Serageldin, 40, led a group at Credit Suisse that traded in mortgage-backed securities. As the housing market soared, his group made hundreds of millions of dollars for the bank by pooling mortgage assets, slicing them up and selling the pieces to investors. Many of those were subprime loans that went to shaky borrowers, however, and banks found themselves holding billions of dollars in sour mortgages when the market collapsed.

Federal authorities began their investigation into Credit Suisse in 2008 after the bank disclosed that Mr. Serageldin’s team had mismarked its mortgage portfolio. The bank suspended the team and cooperated with authorities. Two other traders in that group, David Higgs and Salmaan Siddiqui, were also charged alongside Mr. Serageldin. They all pleaded guilty; Mr. Higgs and Mr. Siddiqui have yet to be sentenced....

“This is the worst day of my life,” Mr. Serageldin told the judge. “I am terribly sorry for what I have done.”

In an unusual moment during the hearing, Judge Hellerstein allowed Mr. Serageldin’s mother to speak about her son. Holding back tears, she told the judge her son had always worked hard to make the family proud. “Please see him in the context of his whole life history,” she told the judge, who commiserated with Ms. Serageldin by telling her that he, too, was the child of immigrants. “Whatever sentence he serves, I will serve.”

The judge asked Mr. Serageldin’s lawyer to explain his client’s misconduct. “This is a deepening mystery in my work,” the judge said. “Why do so many good people do bad things?” Sean Casey, a lawyer at Kobre & Kim, said that Mr. Serageldin was under great pressure during the credit crisis and made a big mistake when confronted with failure for the first time.

Judge Hellerstein said that his sentence was necessary to deter misconduct on Wall Street. “Each person has to look within himself and ask himself what is right, what is wrong,” the judge said. “Even in the worst of times, what is right cannot be sacrificed.”

November 23, 2013 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack (0)

Friday, November 22, 2013

"High Court May Clarify Rule on Impairment and Death Penalty"

Jello wallThe title of this post is the headline of this notable new New York Times piece which astutely recognizes that the Supreme Court may (or may not) clear up the application of its landmark 2002 Atkins Eighth Amendment ruling in a (long-overdue) follow-up Hall case being heard this Term.  Here are excerpts from the piece:

The United States Supreme Court’s ruling in a Florida death penalty case, in which an inmate argued that his intellectual disability made him exempt from execution, could help answer a decade-old question in Texas and other states about how to establish whether an inmate is too severely impaired to be subject to the death penalty.  “This is the courts trying to play catch-up with where the mental health community is going,” said Shannon Edmonds, director of governmental affairs at the Texas District and County Attorneys Association.

The Supreme Court last month agreed to hear the case of Freddie L. Hall, who was sentenced to death for the 1978 rape and murder of a pregnant woman and the fatal shooting of a police officer.  Oral arguments are expected in the spring.

Mr. Hall’s lawyers assert that his low I.Q., his deficits in adaptive behavior and a history of a lack of intellectual abilityrender him ineligible for execution. The high court is expected to decide whether Florida’s criteria for evaluating intellectual disability in death penalty cases — similar to those Texas uses — are adequate.

In Atkins v. Virginia (2002), the Supreme Court ruled that states could not execute the intellectually disabled.  The court found that a lack of brain functioning made them less culpable and more susceptible to flaws in the justice system that could lead to wrongful convictions.  But it was left up to states to determine how intellectual disability would be assessed.  Both Texas and Florida rely on a three-pronged evaluation that requires the defendant to have a low I.Q. and reduced adaptive function and to have exhibited both before the age of 18....

Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability.  Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution.  But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

Defense lawyers have called the standards unscientific, and they drew national attention ahead of the 2012 execution of Marvin Wilson, whose lawyers argued that he was intellectually disabled.  Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”

Maurie Levin, a lawyer who represents several Texas death row inmates, said the Supreme Court’s decision could result in a more scientifically sound set of standards. “The acknowledgment or possibility that they will articulate a need for a respect for scientific principles has the potential for bringing states like Texas back in line,” Ms. Levin said.

For prosecutors, Mr. Edmonds said, guidance from the high court would help them confront cases involving mental health in which the science used to assess conditions is constantly changing. “It’s like trying to nail Jell-O to the wall,” Mr. Edmonds said. “You can never get a handle on it.”

November 22, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack (0)

Gearing up for Paroline with a short "Child Pornography Restitution Update"

Through oral argument in the fascinating Supreme Court case of Paroline v. United States is still a couple months away, it is not too early to start thinking about the range of challenging issues restitution sentences for child porn downloading victims presents for the Justices.  One way to gear up, of course, is to review the parties opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page.

Another effective way to start gearing up would be to read this short piece available now on SSRN titled simply ""Child Pornography Restitution Update" and authored by Mary Leary and James Marsh (who represents a victim seeking restitution). Here is the abstract:

This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.

November 22, 2013 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Two notable Sixth Circuit rejections of notable sentencing appeals by notable defendants

While I was distracted by teaching responsibilities, the Sixth Circuit yesterday handed down two notable (and lengthy) opinions rejecting two distinct defendants' intriguing claims concerning two distinct sentencing outcomes.  The first paragraphs of each opinion highlights why both cases are worthy of full reads:

US v. Volkman, No. 12-3212 (6th Cir. Nov. 21, 2013) (available here):

When a doctor first enters the practice of medicine, he or she swears to abide by a prime directive of the profession: “First, do no harm.”  Paul Volkman breached this sacrosanct tenet when he prescribed narcotics to addicts and individuals with physical, mental, and psychological frailties.  A federal jury looked at Volkman’s actions and found him guilty of breaking several laws, chief among them the law prohibiting the unlawful distribution of controlled substances.  After receiving the jury’s verdict, the district court sentenced Volkman to four consecutive terms of life imprisonment, to be served concurrently with a number of less-lengthy terms.

Volkman now appeals, contending that several errors arose throughout the course of his trial and sentencing.  We disagree, and we AFFIRM Volkman’s convictions and sentence.

US v. Marshall, No. 12-3805 (6th Cir. Nov. 21, 2013) (available here):

Dylan Marshall pled guilty to receiving child pornography over a period of 5 years, from the time he was 15 un til he was 20.  The district court varied downward from the guideline range and sentenced him to 5 years in prison — the mandatory minimum sentence for the offense — expressing its concerns with the perceived harshness of that sentence as it did so.  Marshall has a rare physiological condition called Human Growth Hormone Deficiency, which he believes entitles him to the Eighth Amendment protections accorded to juveniles. But despite his condition, Marshall was an adult at the time of the offense. We therefore affirm his sentence.

November 22, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack (0)

Thursday, November 21, 2013

"Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker"

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

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing.  After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker.  What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned?

This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker.  The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory.  Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker.  Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities.  Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments.  Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

November 21, 2013 in Booker in district courts, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Maryland Gov. candidate running on "comprehensive plan to legalize and regulate marijuana"

MizAs reported in this local article, headlined "Gubernatorial Candidate Mizeur Proposes Marijuana Legalization In Md.," a relatively high-profile candidate in a relatively high-profile state has come out with a campaign message that ensures she will be endorsed by High Times.  Here are the basics:

A candidate for governor wants to legalize the recreational use of marijuana and she’s drawing passionate reaction.... It comes from Democratic candidate Heather Mizeur and would highly regulate the use of pot. She says it’s time to decriminalize it and she’s making more than just political waves.

For the first time, a major party candidate for Maryland governor wants to open the door to legalized recreational marijuana use. “We will take the underground market that exists for everyone trying to access this substance and bring it to the light of day,” Mizeur said.

Mizeur says it would only be for those over 21, illegal to smoke in public and she wants to tax it $50 an ounce, bringing in as much as $157 million a year for education. “Drug dealers on the streets are still selling marijuana to children. They’re not asking for an ID,” she said.

But critics like former addict and counselor Mike Gimbel call the controversial proposal dangerous. “It is totally backwards, irresponsible, stupid and it’s going to hurt people and nobody really seems to care,” he said.

A poll last month showed 51 percent of Marylanders support legalization and 40 percent oppose it.... Maryland is surrounded by jurisdictions that have legalized medical marijuana like D.C. and Delaware, and states considering doing so, like Pennsylvania and West Virginia.

Past attempts for less strict laws have largely failed here and none of Delegate Mizeur’s opponents – Democratic or Republican – support it.

What I find especially noteworthy (and appealing) about this political development is that delegate Mizeur seems eager to make marijuana reform a centerpiece of her campaign and she has this part her official website promoting this detailed 11-page document titled "A Comprehensive Plan to Legalize and Regulate Marijuana in Maryland." Here is how that document gets started:

Marijuana's time as a controlled, illegal substance has run its course.  Marijuana laws ruin lives, are enforced with racial bias, and distract law enforcement from serious and violent crimes. Marijuana criminalization costs our state hundreds of millions of dollars every year without making us any safer.  A Maryland with legalized, regulated, and taxed marijuana will mean safer communities, universal childhood education, and fewer citizens unnecessarily exposed to our criminal justice system.

I do not know local Maryland politics well enough to have any real idea if Mizeur has any real chance to become the next governor of Maryland.  But I do have an idea that her campaign on this issue is just the latest sign of being in interesting political times concerning drug laws and policies.

Cross-posted at Marijuana Law, Policy and Reform

November 21, 2013 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony

As reported in this local article from Texas, that "state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black." Here is more about the ruling and its context:

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers. “This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.

The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”

Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.

State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.

On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.

The two-page majority opinion in this case says nothing of substance, but the 30-page dissent has a whole lot to say.

November 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack (0)

Wednesday, November 20, 2013

"Sex offender offers to castrate himself for lighter sentence"

The title of this post is the headline of this new Boston Herald article, which gets started this way:

A convicted child-sex offender facing more than 40 life sentences in a rash of alleged rapes and assaults at a Wakefield child-care center is offering to undergo a “physical castration” to reduce his sex drive in return for a “massive” reduction in his sentence, his lawyer said.

John Burbine, 49, a Wakefield resident before he was arrested in September 2012, is asking prosecutors or the judge in his case if they would be willing to cap his sentence at the legal minimum of 15 years in prison if he agrees to voluntarily undergo a castration “preventing production of testosterone,” his lawyer William J. Barabino said.  “We would do it only if it results in a massive reduction in sentence,” Barabino told the Herald last night.

He told the judge in a court motion the procedure is effective in producing “a drastic reduction or complete discontinuation in sexual urges and sexual function, due to the inability to produce testosterone,” and is “an accepted method of treating certain types of abnormal sexual behavior, such as pedophilia.”

Barabino will make his pitch this morning in Middlesex Superior Court.  He said prosecutors have already indicated informally they are not interested in the deal.

The Wakefield defense lawyer said he expects a formal reply in court and still hopes the judge might consider authorizing the proposal.  His actual motion calls for a therapist to ensure Burbine can make an informed decision on the medical procedure.

November 20, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack (0)

Congressman pleads guilty and gets quick resolution to local DC cocaine charge

As reported in this Washington Post article, headlined "Rep. Trey Radel pleads guilty on charges of cocaine possession," a new member of Congress discovered how quick and efficient (and humane?) government in the form of the criminal justice system can sometime be.  Here are the notable details:

Freshman Rep. Trey Radel (R-Fla.) pleaded guilty in D.C. Superior Court on Wednesday to a misdemeanor charge of possession of cocaine, after buying the illegal drug outside a restaurant in Dupont Circle late last month.

According to court documents, the first-term congressman “unlawfully, knowingly and intentionally possessed” a quantity of cocaine. Radel was charged Tuesday, following an indictment by a Superior Court grand jury.

Radel and a friend of his met an undercover agent at a restaurant in Dupont Circle at 10 p.m. on Oct. 29, prosecutors said in court. Radel asked the friend and the agent to go with him to his home. The agent declined. Radel then purchased 3.5 grams of cocaine, estimated to be worth $250, from the agent in his car.

After the transaction was made, officers stormed the vehicle, and Radel dropped the drugs. He allegedly invited the officers back to his apartment to discuss the incident. When officers went to the home, they found a vial containing cocaine.

Judge Robert S. Tignor sentenced Radel to one year on probation while he undergoes treatment in Florida. Radel said he is also seeking counseling in the District. Tignor said he took into account that this was Radel’s first offense. If Radel violates the probation, he will have to serve 180 days in jail. He also had to pay a $260 fee. His attorney had sought six months probation at the court hearing.

“Your honor, I apologize for what I’ve done,” Radel told the judge. “I hit a bottom and I realize I need help.”

“I am so sorry to be here,” he said. “I have let my constituents, my country and my family down. I want to come out of this stronger and I intend to do that, to be a better man, a better husband and continuing serving this country.”

If Radel completes probation, he won’t have a conviction on his record, according to the U.S. attorney’s office.

Radel, 37, was elected last November with 63 percent of the vote. He represents Florida’s 19th Congressional District, which includes Fort Myers, Naples, Cape Coral, Bonita Springs and Marco Island. In a statement issued after he was charged Tuesday, Radel expressed profound regret for his actions and said they stemmed in part from an addiction to alcohol. “I struggle with the disease of alcoholism, and this led to an extremely irresponsible choice,” he said. “As the father of a young son and a husband to a loving wife, I need to get help so I can be a better man for both of them . . . I know I have a problem and will do whatever is necessary to overcome it.”

Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), said the matter will be dealt with outside the halls of Congress. “Members of Congress should be held to the highest standards, and the alleged crime will be handled by the courts,” Steel said. “Beyond that, this is between Representative Radel, his family and his constituents.”

But Radel’s case will also be examined by the House Ethics Committee. House rules require the panel to launch a preliminary investigation any time a member is indicted or charged with criminal conduct.

Radel did not participate in House votes Monday evening. But he has been casting votes in recent weeks, including on the day of and the day after the alleged cocaine purchase. He recently co-sponsored a bipartisan bill to reform the nation’s mandatory minimum sentencing laws for drug offenses.

November 20, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (10) | TrackBack (0)

Missouri mass murderer gets two last-minute execution stays from two federal judges... UPDATE: stays reversed, execution completed

As reported in this new Reuters article, "[t]wo federal judges granted a serial killer stays of execution on Tuesday hours before he was to be put to death, allowing him to challenge Missouri's new lethal drug protocol and his mental competence, and the state immediately appealed the rulings."  Here is more:

Joseph Paul Franklin, an avowed white supremacist, was convicted and sentenced to death for killing one man and wounding two outside a St. Louis-area synagogue in 1977.  He was scheduled to be executed early on Wednesday at a Missouri prison.

Franklin, 63, has been linked to the deaths of at least 18 other people.  He was convicted of killing eight in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin.

Franklin also has admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt has argued that Franklin should serve life in prison and not be executed.

In October, Missouri changed its official protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose.  The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.

In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before.  "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....

In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed.

The Missouri Attorney General's office asked the U.S. Court of Appeals for the Eighth Circuit to lift the stays.

Missouri Governor Jay Nixon denied Franklin clemency on Monday.  Franklin is one of 21 plaintiffs challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections.

UPDATE: As the commentors to this post noted before I got back on-line, Franklin was executed by Missouri after the Eighth Circuit reversed both the stays he received. Here is an AP report on the execution:

Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.

Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. Franklin was convicted of seven other murders and claimed responsibility for up to 20, but the Missouri case was the only one that brought a death sentence.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes....

Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution.

But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.

November 20, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack (0)

"Death Meted Out by Politicians in Robes"

The title of this post is the headline of this New York Times editorial, which riffs off of Justice Sotomayor's dissent from the denial of cert concerning Alabama’s death sentencing scheme (discussed here).  Here are excerpts:

In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die.  Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence....

On Monday, the Supreme Court declined to hear a challenge to this law, which appears to violate a 2002 ruling that capital defendants “are entitled to a jury determination of any fact” necessary to sentence them to death.

Justice Sonia Sotomayor wrote a 12-page opinion, joined partly by Justice Stephen Breyer, dissenting from the court’s decision not to hear the current case, Woodward v. Alabama. While the court previously upheld the Alabama law in 1995, she noted, the state is now alone in overriding jury verdicts of life.  Because it undermines “the sanctity of the jury’s role in our system of criminal justice,” Justice Sotomayor wrote, the Alabama law is “constitutionally suspect.”

Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”...

In his dissent from the 1995 ruling upholding the Alabama law, former Justice John Paul Stevens wrote that allowing a judge to override a jury verdict in this way severs “the death penalty from its only legitimate mooring.”

The death penalty should have no legitimate mooring at all in modern American society, and it certainly should not be imposed by a judge who is worried about keeping his job.

November 20, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Tuesday, November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack (0)

"Sex Trafficking Court Holds Hope for the Oft-Blamed"

The title of this post is the title of this notable short essay by Mary Leary now available via SSRN. Here is the abstract:

This opinion piece which appeared in the National Law Journal explores the State of New York’s Human Trafficking Initiative.  This Initiative creates nine Human Trafficking Courts which seek to identify arrestees who may, in fact, be victims of human trafficking and provide them with necessary services.  The column discusses the benefits of this approach to sex trafficking and encourages other jurisdictions to pursue similar models.  Of particular note is the multi-disciplinary approach to this complex issue as well as the initiative’s recognition that each case must be reviewed on its own merits.  The piece concludes with a word of caution regarding the need to work out important details of the scope of the program.

November 19, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack (0)

What message does six-month prison sentence in high-profile NJ animal cruelty case really send?

1467286_670148976359390_1970997383_nThe question in the title of this post is prompted by this lengthy local report about a high-profile New Jersey state sentencing, headlined "Brick couple sentenced to 6 months in jail for abusing dog, Sammy."  Here are excerpts:

The township couple that admitted to abusing a 17-year-old dog named Sammy was sentenced to six months in jail on Monday. Brick residents Keith Morgan, 56, and Shauna Ewing Morgan, 43, stood in silence next to each other and between their respective attorneys while the sentence was read. The sentence also included a $1,000 fine, $13,500 in restitution, 30 days community service and the couple is prohibited from future ownership of an animal.

“This is what we wanted, this is what was deserved and it was justified,” Monmouth County SPCA Chief Victor “Buddy” Amato said. “This judge did the right thing.” A packed courtroom erupted in cheers when Judge Robert LePore announced jail time for the couple.

“Unless these individuals are imprisoned for their depraved, cruel and heinous conduct, such acts of animal cruelty will continue worldwide,” LePore said. “The lack of care provided to Sammy was inexcusable.” LePore said the sentence he issued was to deter future animal cruelty. “This court believes that a message needs to be sent not just to these defendants, but to all of society that animal cruelty is a national and global problem and must be addressed and deterred,” LePore said.

The charges stem from a March incident when Keith Morgan brought the Cocker Spaniel to the Associated Humane Society in Tinton Falls, claiming he found Sammy in a garbage bag on the side of the road, Amato said. Keith Morgan gave an interview to a local television station after he turned the dog in, claiming he found the dog. That interview was played in court during the sentencing. However, officials said they later learned that the couple had owned the dog for at least nine years.

Sammy was then brought to the Red Bank Veterinary Hospital for treatment because he was malnourished and his fur was covered in urine and matted together in knots to the extent that the dog could not stand up, Amato said. He was released to a foster family in April. Days after Sammy was turned in, authorities learned through an anonymous tip that the Morgans had a second dog, named Ady, at their home. Amato said that because Ady had been groomed before they found her, authorities they were unable to determine if she was neglected. The 3-year-old Cocker Spaniel was voluntarily surrendered to the SPCA and eventually placed in a new home.

Before LePore issued the sentencing, both of the Morgans made a statement to the judge, apologizing. “I was in a bad time in my life. I was depressed … because my wife left,” Keith Morgan said. “I apologize, I didn’t mean for this to happen.” He and his attorney Kevin Sheehy told the judge that Shauna Morgan wasn’t at the home for several months before the incident because the two were separated. Keith Morgan had also been diagnosed with a kidney disease and at one point was suicidal, Sheehy said.

Shauna Morgan’s attorney, Marc Schram, told the judge the couple did not have any contact during their separation, and found the conditions at the home when she returned. “I should have foreseen that Sammy wouldn’t have been safe with my husband, but I didn’t know he was going to get so sick. … If I had foreseen it I would have taken Sammy with me,” she said through tears. “I’m sorry it turned out the way it did.”...

Attorney Steven Zabarsky prosecuted the case and he said he was happy with the outcome. “On behalf of the state, I’ve very satisfied,” Zarbarsky said.

Sammy’s case garnered international attention and a Facebook page was created in support of the dog. An online petition calling on prosecutors to ask for the maximum sentence for the Brick couple received nearly 33,000 signatures.

The Morgans were arraigned on May 20, with more than 250 people packing the Brick municipal courtroom to watch.  A line stretched out the door of the courthouse with supporters wearing t-shirts and holding signs demanding justice.  During a July 15 hearing, which also drew approximately 150 Sammy supporters, a Staten Island, N.Y. woman yelled out “Go kill yourself” and was escorted out of the courtroom.

Ultimately the Morgans reached a plea agreement on Aug. 19, and Amato called the outcome a “win.”  Keith Morgan pleaded guilty to one count of abuse of animal cruelty and filing a false report with law enforcement, while Shauna Ewing Morgan admitted to two counts of animal cruelty.

The eight-month case also stirred debates surrounding animal abuse. In May, N.J. 101.5 radio hosts Dennis Malloy, Judi Franco and Ray Rossi were under fire after they brought the case up on their respective shows. Social media posts claimed Malloy and Franco said animal rights activists needed to get their priorities straight, while Rossi allegedly said “untrue” and “hurtful” statements on air about one of the administrators of the Sammy the Cocker Spaniel Facebook page....

Capt. Richard Yocum, who is president of the state SPCA, said he was proud of Detective William Hyer and Deputy Chief Larry Donato, who investigated the case and of the ruling that was made.  “The stand that they [the court] have taken against animal cruelty being unacceptable tonight was admirable,” Yocum said.  “Sammy does have a loving home, he’s doing much, much better and he’s living out his life in a very good place.”

After the sentence, both of the Morgans’ attorneys said they would be filing an appeal Tuesday morning.  The judge granted a motion for a stay to allow the Morgans to remain free for the appeal process.

Because I am an animal lover and have been a passionate pet owner for my whole life, I can understand how many people can and will get very worked up about animal abuse. Still, I cannot help but wonder how much NJ taxpayer money was spent in this prosecution, and I especially wonder if many other abused animals might have been better served if those resources had instead been directed to an animal shelter or to a public service campaign.

Effective use of state resources aside, the message I take away from this sentencing story is the telling (and I think unfortunate) reality that many folks view incarceration as the only serious and meaningful punishment even when it seems likely that creative alternative punishments could possibly be more significant and effective. This kind of case, in which the defendants do not appear to present any real risk to public safety, seems to me to be the perfect setting for developing thoughtful shaming sanctions and lengthy (animal-servicing) community service as a punishment that could and should keep an on-going spotlight on the problems of animal cruelty and better enable other to better understand how to avoid hurting animals in the first instance.

November 19, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (35) | TrackBack (0)

Monday, November 18, 2013

Florida Supreme Court delays execution to hear about new drug used in injection protocol

Concerns about new lethal injection drugs has bought at least a few more weeks of life for a Florida death row defendant.  This Miami Herald update, headlined "Miami killer's execution delayed amid questions about new drug," explains:

In a 5-2 decision, the Florida Supreme Court on Monday ordered that Thomas Knight's scheduled execution be delayed so he can argue that a new drug used to anesthetize a prisoner at the start of a lethal injection could subject him to "serious harm."  Knight, also known as Askari Abdullah Muhammad, had been scheduled to die at Florida State Prison on Dec. 3.

Florida is the only state in the U.S. that uses midazolam hydrochloride as an anesthetic in the first stage of a three-drug lethal injection mixture.  The new drug replaced pentobarbital after the state Department of Corrections exhausted its supply.

The state's high court stayed Knight's execution until at least Dec. 27 and sent his case back the state's Eighth Judicial Circuit, which includes Bradford County, where he is imprisoned. A circuit court judge must hold a hearing on the inmate's claims and issue a ruling no later than 2 p.m. Nov. 26, two days before Thanksgiving, after which time both sides can file additional arguments.

Knight has been on Death Row since 1975 for the murders of a Miami couple. While in prison he stabbed a correctional officer, Richard Burke, to death.  It is that killing for which he is condemned to die.

In its order, the court said: "The Court has determined that Muhammad’s claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad’s 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida’s lethal injection protocol will subject him to a 'substantial risk of serious harm.'

"We further direct the DOC (Department of Corrections) to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug’s use in executions or otherwise, including those addressing any safety and efficacy issues," the court ordered.

November 18, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants

In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9).  Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life.  Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms.  In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii).  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.

In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:

The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.

November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack (0)

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

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

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

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

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

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

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

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

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