Tuesday, December 13, 2016

A deep look into Alabama's new sentencing systems and their impacts

6a00d83451574769e2019affbb5974970cBecause our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:

The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.

Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”

The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.

The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).

The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.

The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.

If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...

Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”

On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...

As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”

State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.

Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....

On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.

“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”

Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”

The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.

For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”

December 13, 2016 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, December 12, 2016

Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home

This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work.  Here are the basics:

The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L

ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”

Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.

“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”

The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....

The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....

Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.

Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.

It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 12, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Adversarial Asymmetry in the Criminal Process"

The title of this post is the title of this interesting looking new article that I just noticed via SSRN and that is authored by Daniel Epps. Based on the abstract, this article seems both provocative and somewhat counter-intuitive. But I think current and former prosecutors might have particular insights concerning the article's claims. Here is the abstract:

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.

In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution.

Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.

December 12, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Remembering Eighth Circuit Judge Myron Bright, a first-ballot "Sentencing Hall of Famer"

Bright-cover-smallMore than a decade ago, I did some blog musing here on a winter's day to imagine a "Sentencing Judges Hall of Fame" — an institution like The National Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  (Compare the mission statement of The National Baseball Hall of Fame.)  Today, the 2016 winter seems just a bit darker to me upon hearing this news report:  "Champion of equality Judge Myron Bright dies at 97."

Regular readers know why I am inclined to call the late Judge Bright a first-ballot "Sentencing Hall of Famer," and the news report does a solid (though necessarily incomplete) job of documenting just some reasons why Judge Bright was a singular judicial figure whose accomplishments and work will surely shine on for many years:  

Bright was born March 5, 1919, in Eveleth, Minn., the son of Jewish immigrants from Russia. He grew up on the Iron Range during the Great Depression, and he served in the U.S. Army Air Corps in the Pacific during World War II, rising to the rank of captain. He married Louise Reisler in 1946, and they had two children.

He was admitted to the North Dakota Bar in 1947, and he practiced law for 21 years before President Lyndon Johnson appointed him to the federal bench. On Aug. 16, 1968, Bright was sworn in as a judge on the 8th Circuit appeals court.

By 2013, Bright estimated he had heard 7,000 cases and written 2,500 opinions – many of them dissents or separate concurrences – in his time on the bench. Even as late as 2014, he was hearing 40 to 50 cases a year, he said. In all, Bright served more than 48 years as a federal judge between full time and senior status.

Judges often reflect the philosophies of the presidents who appoint them, and in a December 2010 interview, Bright said he was proud to have done so, too. He and other Johnson appointees “worked unceasingly to batter down the prejudice against blacks and other minorities and women,” Bright said....

For years, Bright was concerned by the disproportionately long sentences for Native Americans who commit the same crimes as whites. In recent years, Bright said the nation needed to address the sentencing of large numbers of nonviolent drug offenders to prison, which cost the U.S. billions of dollars annually.

His efforts paid off. In 2013, then-U.S. Attorney General Eric Holder spoke out against harsh mandatory minimum sentences for nonviolent offenders. Legal experts credited Bright with being one of the most influential judges in advocating an end to mandatory minimum sentencing. “What shall I say? I got vindication,” he told The Forum in a 2013 interview.

Bright’s efforts also loomed large in the life of James Dean Walker, an Arkansas man imprisoned for more than two decades after being convicted of murdering a police officer in 1963. “After I looked at the Walker case, it didn’t smell right,” Bright told The Forum, even though he at first regarded the appeal with skepticism.

After a series of hearings and procedural reversals, Bright prevailed in a 5-4 decision that allowed Walker to leave prison as a free man in 1985. The divided appeals court concluded Walker was convicted with false evidence, and found that favorable eyewitness testimony had been suppressed....

As a judge, Bright said he had the satisfaction of seeing many of the decisions he helped to mold become embraced by the U.S. Supreme Court. Often, the son of an immigrant storekeeper who repeatedly granted credit to jobless customers found himself siding with the disenfranchised while on the bench. “I suppose I have a sympathetic heart, you might say,” Bright said, though he added that his decisions must be based on the law.

For those interested in an additional kind accounting of just some of Judge Bright's work, I am pleased to have been permitted to reprint here a letter authored by another one of my judicial heroes, U.S. District Judge Robert Pratt, which supported Judge Bright's nomination for the Morris Dees award.

Download Judge Pratt Letter about Judge Bright for Morris Dees award

December 12, 2016 in Who Sentences? | Permalink | Comments (0)

Another unanimous SCOTUS win for feds in bank fraud case

Last week, as blogged here, the Supreme Court handed down its first significant criminal justice ruling of the Term via a unanimous decision against a white-collar defendant in Salman v. US, No. 15-628 (S. Ct. Dec. 6, 2016) (available here).  Today, brought another such ruling in Shaw v. US, No. 15-5991 (S. Ct. Dec. 12, 2016) (available here), which gets started this way:

A federal statute makes it a crime “knowingly [to] execut[e] a scheme . . . to defraud a financial institution,” 18 U.S.C. §1344(1), for example, a federally insured bank,18 U. S. C. §20. The petitioner, Lawrence Shaw, was convicted of violating this provision. He argues here that the provision does not apply to him because he intended tocheat only a bank depositor, not a bank. We do not accept his arguments.

Here is part of the substantive heart of the opinion for the Court and its closing flourish via Justice Breyer:

[F]or purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds....

The statute is clear enough that we need not rely on the rule of lenity.  As we have said, a deposit account at a bank counts as bank property for purposes of subsection (1). Supra, at 2–3.  The defendant, in circumstances such as those present here, need not know that the deposit account is, as a legal matter, characterized as bank property. Supra, at 4–5.  Moreover, in those circumstances, the Government need not prove that the defendant intended that the bank ultimately suffer monetary loss.  Supra, at 3–4. Finally, the statute asapplied here requires a state of mind equivalent to knowledge, not purpose. Supra, at 5–6.

December 12, 2016 in Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt

I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list.  Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list.  Here are excerpts from that dissent:

Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....

Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003).  This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890).  I should hope that this kind of delay would arise only on the rarest of occasions.  But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....

<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances.  On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection.  State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623.  Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624.  The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment?  See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.

As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)...  Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).

I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay).  Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.

December 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Trump should reform criminal justice system to foster economic growth"

The title of this post is the headline of this new commentary published in The Hill and authored by Eric Sterling, who is now the executive director of the Criminal Justice Policy Foundation and long ago was counsel to the U.S. House Judiciary Committee. Here are excerpts:

President-elect Trump has expressed a commitment to fostering economic growth and preserving American jobs. In that pursuit, he would be well advised to work towards reforming the criminal justice system. If he embraced a bankruptcy-like program to restore clean criminal records to the millions of Americans who have not been in trouble for many years, he could generate hundreds of thousands jobs – many more than were saved by his intervention and promises to Carrier and United Technologies.

One of the first measures of any economy is employment and job growth. Surprisingly (and unbeknownst to most politicians), our criminal justice system, and its focus on punishment instead of prevention, is one of the biggest drags on our economy because its long-term impact on employment. Once you have a criminal conviction, your ability to get a job is slashed for the rest of your life. If you can get a job, it is likely be “off-the-books.” One Department of Justice study estimated that the average wage loss is 50 percent.

The Bureau of Justice Statistics reported a decade ago that about 68 million Americans have a criminal record. Many of these records are not convictions, but some estimate that about one-third of American working age adults have a criminal conviction.

More than two-thirds of the U.S. gross domestic product is based on the activity of consumers. Cumulatively, the "under-earning" by perhaps one-third of American consumers means lost purchases of everything that every American company makes and sells. Imagine how many Americans could get a mortgage and buy a home if millions of Americans no longer had a criminal record (and imagine how many new Carrier furnaces and air conditioners would be sold and installed).

We have a prison population of 1.8 million (that excludes the jail and juvenile detention populations). In 1970, that number was about .25 million. We know that none of the men and women in prison bought a Ford or Chevrolet last year. We also know that most of those in prison are not there for violent offenses. If they were home – yes, with their liberty restricted, and under supervision – they could work, and many of them would need and could buy a car....

Imagine what the Social Security trust fund would like if millions more American men and women were working, instead of in prison or unemployed or underemployed. Trump should direct his economic team to fully calculate the large-scale economic benefits of smart on crime justice reform.

Trump is proud of his mastery of bankruptcy laws. A criminal record clean slate law is like a bankruptcy. Instead of wiping your financial debts away, such a law would wipe away your criminal record after five or seven years of verifiable good conduct. Bankruptcy, which is in the Constitution, is a useful model for rebuilding the records of formerly convicted persons to re-enter the economy by the millions and help build economic growth for all Americans.

December 12, 2016 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Sunday, December 11, 2016

Vermont Gov promising to pardon all marijuana offenses on his way out of office

As reported in this local article from Vermont, "before he leaves office, Gov. Peter Shumlin is planning to pardon people who were convicted of possessing up to one ounce of marijuana." Here are the details:

Vermont removed criminal penalties for small amounts of marijuana possession in 2013. Shumlin said in a statement that pardoning the convictions now is "the right thing to do," and he hopes to review as many applications as possible before he leaves office in the new year. [The official statement is here.]

“Decriminalization was a good first step in updating our outmoded drug laws," Shumlin said. "It makes no sense that minor marijuana convictions should tarnish the lives of Vermonters indefinitely.”

The governor will consider pardons for people who have never been convicted of "violent criminal Vermont convictions or felonies," according to a news release.  The governor's office believes as many as 10,000 people are eligible for pardons, said James Pepper, a policy adviser and director of intergovernmental affairs for Shumlin....

People interested in a pardon for marijuana possession can apply through the governor's website before Dec. 25 [link here]. The website cautions applicants that their applications may be considered public records and that a pardon "will not necessarily erase a conviction or the record of that conviction."

"If you are requesting a pardon because you believe the pardon will have certain legal consequences for you, you should talk to a lawyer," the governor's website states....

A 2015 Vermont law allows people in certain circumstances to expunge criminal records of acts they committed before age 25 that are no longer criminal, including possession of small amounts of marijuana. Shumlin believes Vermont should legalize recreational marijuana. A legalization bill passed the state Senate this year but did not pass the House of Representatives.

This story provides further reinforcement of my long-standing view that marijuana reform = sentencing reform and that everyone interested in sentencing reform should be a supporter of marijuana reform. And, of course, for more on marijuana law, policy and reform, my other blog has been covering these stories:

December 11, 2016 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Nobel Peace Prize winner suggests that drug war may be most harmful of all wars currently being waged, combines

The BBC News account of this weekend's Nobel Prize awards highlights a notable comment from a notable Nobel laureate.  The article is headlined "Nobel Peace Prize: Santos calls for 'rethink' of war on drugs," and here are some excerpts:

The President of Colombia, Juan Manuel Santos, has used his Nobel Peace Prize acceptance speech to call for the world to "rethink" the war on drugs. He said the zero-tolerance policy might be "even more harmful" than all the other wars being fought worldwide.

Mr Santos's government and the country's biggest rebel group, the Farc, signed a peace deal last month.  Bob Dylan, the first songwriter ever to receive the Nobel literature prize, did not collect his award in person. He received a standing ovation nevertheless.

The conflict with the Farc rebels in Colombia has killed more than 260,000 people and left millions internally displaced. Accepting the prize for his efforts in the peace process, Mr Santos paid tribute to the families of victims of the conflict. He said the "great paradox" of peacemaking was that "the victims are the ones who are most willing to forgive, to reconcile and to face the future with a heart free of hate".

In a deviation from his prepared remarks, he asked the representatives of the victims present to stand and be recognised for their own efforts in the peace process, to much applause. He previously pledged to donate the prize money -- eight million Swedish krona ($925,000) -- to help the conflict's victims. "I have served as a leader in times of war -- to defend the freedom and the rights of the Colombian people -- and I have served as a leader in times of making peace," he said. "Allow me to tell you, from my own experience, that it is much harder to make peace than to wage war."

Mr Santos said it was "time to change our strategy" on drugs, and that Colombia had "paid the highest cost in deaths and sacrifices" in the so-called war on drugs. The term, coined by US President Richard Nixon more than four decades ago, refers to US-led efforts to stop drug production at its source. In Latin America this has included on-the-ground policing, and fumigation of coca fields from the air.

"We have moral authority to state that, after decades of fighting against drug trafficking, the world has still been unable to control this scourge that fuels violence and corruption throughout our global community," he said. "It makes no sense to imprison a peasant who grows marijuana, when nowadays, for example, its cultivation and use are legal in eight states of the United States.

"The manner in which this war against drugs is being waged is equally or perhaps even more harmful than all the wars the world is fighting today, combined."

December 11, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!

Ap_927490019645-2I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.  

With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love.  The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:

"Feds recommend 17-22 years in prison for Fattah"

Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.

"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."

That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.

"Fattah lawyers: A 17-to-22 year sentence for ex-congressman would be 'unnecessarily harsh'"

Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.

Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases.  "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote.  "As a legislator, he made the education of disadvantaged youth his life's work.  And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."

The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.

Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.

My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.

UPDATEThis Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."

December 11, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Saturday, December 10, 2016

Clinical Faculty Position available to teach in two criminal justice clinics at The Ohio State University Michael E. Moritz College of Law

Images (17)It is my honor and pleasure to be able to use this space to post about a newly available position in my own law school. Here is the official announcement (which is also available at this link):

The Moritz College of Law invites applications for an Assistant Clinical Professor of Law to teach its two criminal justice clinics beginning in academic year 2017-2018. To allow adequate preparation, the position will start no later than July 1, 2017.

Our College offers both a prosecution clinic (taught each fall semester) and a defense clinic (taught each spring semester). The defense clinic represents indigent misdemeanor defendants in Franklin County, home of the nation’s fifteenth largest city. The prosecution clinic handles misdemeanor cases in nearby Delaware County, which encompasses suburban and rural populations. Both clinics exercise autonomy over selection and handling of all cases.

The Assistant Clinical Professor will team teach both clinics with an experienced member of the Moritz faculty. The two professors will share responsibility for course design, classroom instruction, and student conferences; the newly hired Assistant Clinical Professor will serve as counsel of record in all cases and take primary responsibility for courthouse supervision of the student legal interns.

The position is a nontenure-track position with security reasonably similar to tenure, as provided by ABA Standard 405(c). Professors appointed to this clinical track within the Moritz College of Law shall have relevant practice and occupational experience in their areas of expertise and strong potential in all relevant areas of clinical or skills teaching, such as: (a) supervising students in a clinical or skills setting; (b) handling cases and other matters assigned through the clinical programs; (c) classroom teaching; (d) conforming to the ethical standards of applicable codes of professional responsibility; (e) engaging in public service; (f) expanding understanding of the law through preparation of written materials; and (g) maintaining knowledge in the faculty member’s areas of expertise. Production of traditional scholarship is not required, but the College supports clinical faculty who wish to engage in that activity.

The Assistant Clinical Professor will be hired for an initial probationary period of 3 to 5 years (with annual review) and will have full rights to participate in all College governance matters other than the appointment, promotion, and tenure of tenure-track faculty. Assuming satisfactory performance during the probationary period, the Assistant Clinical Professor will be eligible for promotion to Associate Clinical Professor under a long-term renewable contract of 3 to 5 years that permits removal only for cause or financial exigency. The College would consider lateral appointments (at the Associate Clinical Professor level) only for candidates with significant law school teaching experience.

The position offers a unique opportunity to supervise students in both prosecution and defense work, to expose those students to two very different justice systems, and to engage with the criminal justice system from multiple perspectives. The College has developed strong relationships with the municipal courts, prosecutors, and defense bar in Franklin and Delaware Counties, which allow these clinics to flourish.

We will consider all applicants; we particularly encourage applicants with either defense or prosecution experience to apply. We do, however, prefer candidates with at least three years’ experience practicing criminal law. Candidates should be admitted to the Ohio Bar or be eligible for admission in Ohio. Candidates also should have a record that demonstrates potential for successful clinical teaching and related activities.

A resume, references, and cover letter should be submitted to Professor Steven Huefner, Chair, Clinical Faculty Search Committee, The Ohio State University Moritz College of Law, 55 West 12th Avenue, Columbus, Ohio 43210. Send e-mail applications to huefner.4@osu.edu. Applications will be reviewed beginning December 10 and will be accepted until the position is filled; preference will be given to applications received before January 15, 2017.

The Moritz College of Law recognizes that excellence in a legal education as well as in our legal system, institutions, workplaces and communities is enriched by a diverse faculty, staff and student body. The Ohio State University is an equal opportunity employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability status, or protected veteran status.

December 10, 2016 in Who Sentences? | Permalink | Comments (2)

U.S. Supreme Court adds federal drug-offense forfeiture case to its docket

As reported here at SCOTUSblog, on Friday afternoon "the justices issued orders from [their] private conference, adding one new case to their merits docket for the term."  That new case concerns a criminal justice/sentencing issue, forfeiture, that has been a focal point of concerns for reform activists across the political spectrum.  Here are the details from SCOTUSblog about the forfeiture case now before the Justices on the merits:

They agreed to review the case of Terry Honeycutt, who worked as a salaried employee at a hardware store owned by his brother, Tony.  The two brothers were charged with federal drug crimes for the store’s sale of an iodine-based water disinfectant -- which can also be used to make methamphetamines.  Tony pleaded guilty and forfeited $200,000 to account for the proceeds of the illegal sales.  After Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry countered that he should not have to forfeit the remaining proceeds because he did not own the store and therefore did not receive them.  The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed. It ruled that Terry could be held independently liable for the store’s proceeds from the sales even if the funds never actually reached him.

The federal government acknowledged that the courts of appeals are divided on the question presented by Terry’s appeal. It nonetheless urged the justices to deny review, explaining that the split among the circuits is “lopsided and recent.”  And in any event, it contended, Terry’s case is not a good one in which to consider that question, because he would also be liable for the forfeiture under the conflicting rule adopted by the U.S. Court of Appeals for the District of Columbia Circuit.

Despite the government’s objections, the justices granted certiorari [and] Honeycutt v. United States will likely be argued in the spring, with a decision by the end of June.

December 10, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

US Sentencing Commission proposes many guideline amendments as many USSC members complete service

JS-USSC_Logo-e1405802171396This extended press release from the US Sentencing Commission reports on the significant activities of the USSC at its public meeting yesterday.  The press release also explains a bit why these activities took place at this time and why the USSC is on the verge of a big transition.  Here are highlights (with links from the original):

Today the United States Sentencing Commission unanimously voted to publish proposed amendments to the federal sentencing guidelines.

The public meeting afforded the current commissioners the opportunity to work together for the last time, as the terms of Chief Judge Patti B. Saris (Chair of the Commission), Judge Charles R. Breyer (Vice Chair), and Commissioner Dabney L. Friedrich will expire at the end of the current congressional session.  Praising her colleagues, Chair Saris remarked, “Commissioner Friedrich and Judge Breyer demonstrated a remarkable commitment to improving federal sentencing policy and brought a wealth of knowledge and experience to the Commission.  I am deeply honored to have worked with them, and all of the commissioners, these past six years to make the guidelines more efficient, effective, and just. The proposed amendments were evidence-based, data-driven, and adopted in a collegial and bipartisan fashion. I thank all the commissioners and staff for their hard work. I am confident that the future Commission and its staff will remain dedicated to this serious and important mission” (full remarks).

In her final statement as Chair, Chief Judge Saris stated, “Next year marks the 30th anniversary of the federal sentencing guidelines. So much bipartisan progress has been made in criminal justice reform. I am hopeful that the 115th Congress will pass meaningful legislation, adopting the Commission’s unanimous recommendations to reduce the statutory mandatory minimum penalties for drug trafficking and to expand the so-called ‘safety valve,’ the mechanism to reduce sentences for non-violent, low level offenders.” The Commission will announce a new Acting Chair at the conclusion of this session of Congress.

The Commission proposed an amendment that could increase the use of alternatives to incarceration for first-time offenders. The Commission remains committed to its work to make the guidelines and federal sentencing fairer and more proportionate while maintaining an ongoing commitment to public safety.  In 2010, the Bureau of Prisons inmate population was 37% over capacity, and now it is around 15%.  Consistent with the ongoing statutory mandate to address overcrowding, the proposed amendment would reduce penalties for first-time offenders and increase the availability of alternatives to incarceration.  In a 2015 study, the Commission found that alternative sentences were imposed in only 13% of federal cases.  In a more recent research report, the Commission further found that offenders with zero criminal history points had the lowest rates of recidivism.

The commissioners also agreed to conduct a two-year study of synthetic drugs, which may result in establishing drug equivalencies for controlled substances not yet referenced at the drug quantity table in §2D1.1. To contribute to the study, commissioners voted to seek comment on offenses involving synthetic cannabinoids, synthetic cathinones (more commonly known as bath salts), and MDMA, also known as Ecstasy.

In a May 2016 report, the Commission’s Tribal Issues Advisory Group (TIAG) identified the treatment of youthful offenders as an area needing further examination. As a result of this study and the Commission’s subsequent research, commissioners voted unanimously to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score.

Another proposed amendment responds to the Bipartisan Budget Act of 2015. The Commission is considering a proposed amendment that reflects Congress’s changes to the Social Security Act by increasing penalties for social security fraud. In putting forth this proposed amendment, Chair Saris stated, “I would like to acknowledge the important years of work, as well as the continued oversight, led by the House Judiciary Committee, the Senate Committee on Finance and the House Ways and Means Committee to ensure aggressive implementation of these new penalties relating to Social Security fraud.” Other changes relate to the treatment of revocation sentences under §4A1.2(k) and a possible departure provision at §4A1.3 based on an offender’s criminal history category.

Over the past six years, the current Commission took a number of actions to address unwarranted sentencing disparities and to reduce federal prison costs and populations. The Commission reduced disparities in federal cocaine sentencing policy by giving retroactive effect to the guideline changes resulting from the Fair Sentencing Act of 2010, resulting in reduced sentences for 7,748 federal offenders. In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge. These actions have contributed to a significant decrease in the federal prison population, leaving more funding for law enforcement, crime prevention and reentry programming, and victim services....

By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum.

December 10, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (0)

Friday, December 9, 2016

"How Many Americans Are Unnecessarily Incarcerated?"

Unnecessarily_IncarceratedThe question in the title of this post is the title of this notable new report from The Brennan Center.  The report's preface serves as a useful overview of its coverage and findings, and here are extended excerpts from the preface:

While mass incarceration has emerged as an urgent national issue to be addressed, the reforms currently offered are dwarfed by the scale of the problem. The country needs bolder solutions. How can we significantly cut the prison population while still keeping the country safe? This report puts forth one answer to that question. Our path forward is not offered as the only answer or as an absolute. Rather, it is meant to provide a starting point for a broader discussion about how the country can rethink and revamp the outdated sentencing edifice of the last four decades.

This report is the product of three years of research conducted by one of the nation’s leading criminologists, experienced criminal justice lawyers, and statistical researchers. First, we conducted an in-depth examination of the federal and state criminal codes, as well as the convictions and sentences of the nationwide prison population (1.46 million prisoners serving time for 370 different crime categories) to estimate how many people are currently incarcerated without a sufficient public safety rationale. We find that alternatives to incarceration are more effective and just penalties for many lower-level crimes. We also find that prison sentences can safely be shortened for a discrete set of more serious crimes.

Second, based on these findings, we propose a new, alternative framework for sentencing grounded in the science of public safety and rehabilitation. Many have argued that regimented sentencing laws should be eliminated and replaced with broad judicial discretion. Others counter that this would reinstate a system wherein judges are free to deliver vastly divergent sentences for the same crime, potentially exacerbating racial disparities and perpetuating the tradition of harsh sentences. This report proposes a new solution, building on these past proposals. We advocate that today’s sentencing laws should change to provide default sentences that are proportional to the specific crime.

Many have argued that regimented sentencing laws should be eliminated and replaced with broad judicial discretion. Others counter that this would reinstate a system wherein judges are free to deliver vastly divergent sentences for the same crime, potentially exacerbating racial disparities and perpetuating the tradition of harsh sentences.

This report proposes a new solution, building on these past proposals. We advocate that today’s sentencing laws should change to provide default sentences that are proportional to the specific crime committed and in line with social science research, instead of based on conjecture. These defaults should mandate sentences of alternatives to incarceration for lower-level crimes. For some other crimes that warrant incarceration, they should mandate shorter sentences. Judges should have discretion to depart from these defaults in special circumstances, such as a defendant’s criminal history, mental health or addiction issues, or specifics of the crime committed. This approach is grounded in the premise that the first principle of 21st century sentencing should be to protect public safety, and that sentences should levy the most effective, proportional, and cost-efficient sanction to achieve that goal. It aims to create more uniform sentences and reduce disparities, while preserving judicial discretion when needed....

Based on these findings, this report issues the following recommendations to safely reduce the prison population....

  • Eliminate Prison for Lower-Level Crimes Barring Exceptional Circumstances: State legislatures and Congress should change sentencing laws to mandate alternatives to prison as the default sentences for certain lower-level crimes. These include drug possession, lesser burglary, minor drug trafficking, minor fraud or forgery, minor theft, and simple assault — offenses that now account for 25 percent of the prison population. Alternative sanctions — such as community service, electronic monitoring, probation, restitution, or treatment — should be the default for such crimes instead. Judges should have flexibility to depart and impose a prison sentence if certain enumerated factors are present — for example, repeat serious offenses or heinous circumstances of the crime.

  • Reduce Sentence Minimums and Maximums by Law: State and federal legislatures should reduce the current minimums and maximums prison stays set by laws, or guidelines. These ranges should be proportional to the crimes committed, with judges retaining discretion to depart when appropriate. We recommend that legislators consider a 25 percent cut as a starting point to determine how to reduce sentences for the six major crimes that make up the bulk of the current prison population: aggravated assault, murder, nonviolent weapons offense, robbery, serious burglary, and serious drug trafficking. Sentences would be shorter, but still substantial. For example, the average inmate convicted of robbery now serves 4.2 years. A 25 percent cut would reduce the prison stay to 3.1 years. A similar analysis can be applied to other crimes for which prison may be warranted to determine whether sentences can be safely shortened.

  • Retroactively Apply Reforms: Current inmates should be permitted to petition judges for retroactive application of the two reforms above, on a case-by-case basis. This would allow for safe release of prisoners whose sentences no longer serve a justifiable public safety purpose.

  • Complementary Recommendations: Prosecutors should use their discretion to seek alternatives to incarceration or shorter prison stays in line with the recommendations of this report. Further, the nearly $200 billion in savings from implementing this report’s recommendations can be reinvested in proven crime prevention tactics and in alternatives to incarceration proven to reduce recidivism. While the first steps many states have taken toward prison reform are welcome, they have not gone far enough. It took roughly four decades to build mass incarceration. Yet, at current rates of decline, it will take even longer to undo it.

December 9, 2016 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25)

As opioid deaths officially surpass gun homicides, will national leaders continue to ignore potential live-saving benefits of medical marijuana?

The question in the title of this post is prompted by this new Washington Post Wonkblog piece, which starts by noting that "opioid deaths continued to surge in 2015, surpassing 30,000 for the first time in recent history, according to CDC data released Thursday." Here is more of the grim data:

That marks an increase of nearly 5,000 deaths from 2014. Deaths involving powerful synthetic opiates, like fentanyl, rose by nearly 75 percent from 2014 to 2015. Heroin deaths spiked too, rising by more than 2,000 cases. For the first time since at least the late 1990s, there were more deaths due to heroin than to traditional opioid painkillers, like hydrocodone and oxycodone....

In a grim milestone, more people died from heroin-related causes than from gun homicides in 2015. As recently as 2007, gun homicides outnumbered heroin deaths by more than 5 to 1. These increases come amid a year-over-year increase in mortality across the board, resulting in the first decline in American life expectancy since 1993.

Congress recently passed a spending bill containing $1 billion to combat the opioid epidemic, including money for addiction treatment and prevention. "The prescription opioid and heroin epidemic continues to devastate communities and families across the country — in large part because too many people still do not get effective substance use disorder treatment,” said Michael Botticelli, Director of National Drug Control Policy, in a statement. "That is why the President has called since February for $1 billion in new funding to expand access to treatment."

Much of the current opioid predicament stems from the explosion of prescription painkiller use in the late 1990s and early 2000s.  Widespread painkiller use led to many Americans developing dependencies on the drugs.  When various authorities at the state and federal levels began issuing tighter restrictions on painkillers in the late 2000s, much of that demand shifted over to the illicit market, feeding the heroin boom of the past several years.

Drug policy reformers say the criminalization of illicit and off-label drug use is a barrier to reversing the growing epidemic. “Criminalization drives people to the margins and dissuades them from getting help,” said Grant Smith, deputy director of national affairs at the Drug Policy Alliance. “It drives a wedge between people who need help and the services they need. Because of criminalization and stigma, people hide their addictions from others.”

These depressing data spotlight one of many reasons I am supportive of medical marijuana reforms for the treatment of pain. It is functionally impossible to die from an overdose of marijuana, and thus it will always be in some important ways safer for someone to become dependent on marijuana rather than on opioids for pain relief. In addition, as highlighted in a number of posts from my other blog, there is considerable research emerging from various sources that the opioid epidemic is somewhat less deadly in states that have robust medical marijuana programs.

Some related posts from Marijuana Law, Policy and Reform:

December 9, 2016 in Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (2)

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, December 8, 2016

"Death Row Dogs, Hard Time Prisoners, and Creative Rehabilitation Strategies: Prisoner-Dog Training Programs"

The title of this post is the title of this intriguing looking new paper authored by Paul Larkin now available via SSRN. Here is the abstract:

The use of Prisoner-Dog Programs (PDPs) is an innovative rehabilitative strategy that takes advantage of the bond that humans have had with dogs for thousands of years. Numerous state correctional facilities, along with the BOP, have adopted these programs to give prisoners, and sometimes dogs, a second chance.  The informal results witnessed to date appear positive for everyone concerned.

Inmates benefit because the animal-training instruction they receive, along with the experience they acquire training dogs in their care, provides them with a skill that they can use after their release.  More importantly, the relationship that a prisoner builds with his dog teaches him the need to achieve a goal; the importance of discipline and patience, along with disutility of violence, in being successful; the value and sense of self-worth in empathizing and caring for another creature; and, perhaps for the first time, the emotional bond with another living creature that allows him to feel and express love.  Dogs benefit because they escape their own death row and find their own “forever” homes.  Prisons benefit because the close interaction between prisoners and dogs leads to a reduction in the number of infractions and amount of violence. Members of the community benefit by receiving a dog that can become a service dog or a treasured family member. And society benefits from a reduction in the recidivism rate of participating inmates.  That is a “win-times-five.”

Prisoners, private parties, private organizations, correctional officials, and observers have all offered testimonials to the worthwhile effects of PDPs.  Dogs have done so too, in their own way.  To prove the utility of PDPs as a valuable rehabilitative strategy, Congress should instruct the GAO or the Justice Department to analyze existing PDPs to determine whether they are operating effectively and efficiently.

December 8, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Wednesday, December 7, 2016

Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform

NA-CM623_SESSIO_16U_20161206163606The Wall Street Journal has this new article flagging the sentencing reform work of Senator Jeff Sessions, who is Prez-Elect Donald Trump's pick to serve as our next Attorney General. The article is headlined "Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing: Attorney-general pick, targeted for his record on race, advocated for parity in cocaine punishments." Here are excerpts:

Civil-rights groups are set to battle Sen. Jeff Sessions’s nomination as attorney general over what they see as his disturbing record on racial equality. But there is one chapter in the former prosecutor’s career where they share a sliver of common ground.

Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime. There has been a growing consensus that harsh penalties for crack, typically bought and sold on city streets, have taken an undue toll on African-American communities, while black leaders have long viewed the disparity as little short of racist.

To Mr. Sessions’s critics, the issue doesn’t come close to compensating for his career-long opposition to expanding civil-rights protections and reducing mandatory sentences, and more broadly for what they see as a general indifference to issues important to minorities.

But to the Alabama senator’s supporters, it is an overlooked part of a résumé they say is sometimes caricatured. “This was a personal agenda item for him,” said Matt Miner, Mr. Sessions’s former chief counsel. “This law was not calibrated to target serious drug dealers and was disproportionately affecting African-Americans, and it offended him.”

In a rare bipartisan move, Mr. Sessions and Democratic Sen. Dick Durbin of Illinois ultimately struck a deal in 2010 to reduce, though not eliminate, the sentencing disparity. Mr. Sessions hung a copy of the resulting legislation, signed by President Barack Obama, in a prominent spot in his office next to his desk, Mr. Miner said....

In 1995, the U.S. Sentencing Commission tried to put the sentencing guidelines on par, but Congress rejected the proposal. Weeks later, riots broke out in the federal prison in Talladega, Ala., and spread to other federal facilities, an uprising the Bureau of Prisons attributed partly to Congress’s rejection of the cocaine measure. Mr. Sessions, then Alabama’s attorney general, was elected to Congress the following year. His first sentencing bill, in 2001, lowered the sentencing disparity to 20-to-1.

Mr. Sessions declined to comment for this article. But he told The Wall Street Journal at the time that the crack penalties were unfair and in many cases made cities less safe, not more so. On the Senate floor, he cited studies showing that African-Americans made up 84% of defendants sentenced for trafficking crack but only 31% of those sentenced for powder. “The five-gram trigger point for crack that was intended to protect African-Americans has resulted in heavy penalties for African-Americans, penalties that lack a rational basis,” Mr. Sessions said in 2002. He reintroduced the proposal in 2006 and 2007.

The Fair Sentencing Act, ultimately signed into law in 2010, raised the trigger for a five-year sentence to 28 grams of crack and the 10-year trigger to 280 grams of crack. The triggers for powder cocaine remained at 500 and 5,000 grams.

Advocates for criminal-justice changes aren’t expecting much support from Mr. Sessions on some of their other priorities. “It’s not entirely clear why he supported the Fair Sentencing Act,” said Marc Mauer, executive director of the Sentencing Project, which worked with Mr. Sessions on the issue for years. Mr. Sessions has opposed efforts to reduce sentences for nonviolent drug offenders and to investigate law-enforcement agencies accused of violating civil rights.

Others are even more downbeat.

“He has taken positions so diametrically opposed to civil and human rights that there is little hope he would bring the sense of hope and openness he brought to the Fair Sentencing Act to the job of attorney general,” said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. “I consider it a one-off where he could show he was more enlightened and less doctrinaire than some of his colleagues.”

Mr. Henderson’s group is one of 145 organizations that signed a letter opposing Mr. Session’s nomination. The letter cites racially insensitive remarks allegedly made by Mr. Sessions; his unsuccessful prosecution of three black voting-rights activists on fraud charges; his support for voter ID laws that many activists say are designed to tamp down minority voting; and his opposition to a 2009 law expanding federal prosecution of hate crimes....

Kevin Ring, vice president of Families Against Mandatory Minimums and himself a former offender, said he hopes Mr. Sessions will at least leave discretion to federal prosecutors rather than ordering them to seek maximum penalties. “I’m looking for a silver lining,” he said.

A few prior related posts on Senator Sessions and sentencing reform:

December 7, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office.  This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."

I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.  This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:

The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.

In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.

While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.

There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....

The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can.  The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack.  The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.

Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency.  Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge.  With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.

December 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences

As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:

Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible."  A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.

The first ruling involved a murderer who was 16 at the time.  The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled.  In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...

The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime.  Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."

A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.

I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):

On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.

In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....

Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.

The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.

December 7, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Georgia completes ninth and last execution of 2016

As reported here by BuzzFeed News, "William Sallie was executed Tuesday night in Georgia for the 1990 murder of his father-in-law, Jack Moore, after the US Supreme Court denied two requests to halt it." Here is more:

Sallie became the ninth person to be executed in Georgia this year, making it the state with the most executions so far in 2016. It was also the highest number of executions in the state since the death penalty was reinstated in 1976.

In March 1990, Sallie broke into the home of his in-laws, Jack and Linda Moore, where his ex-wife Robin and their two-year-old son, Ryan, were living after Sallie lost a bitter custody battle. Robin’s 17-year-old sister, April, and 9-year-old brother Justin also lived in the rural home in Bacon County, according to court documents. Sallie shot the Moores as they slept in their bed, killing Jack and wounding Linda. He then handcuffed Linda and Justin to the bed rail and abducted Robin and April to his mobile home where he raped them, according to evidence presented at the trial. He released them a day later and was arrested shortly after.

The Georgia Board of Pardons and Paroles denied clemency for Sallie on Monday. Sallie’s clemency petition and an appeal filed in the US Supreme Court argue that his execution will be unconstitutional as he has been denied federal court review of his claims of juror bias because of a procedural technicality. The US Supreme Court denied his request, with no noted dissents by any of the justices.

His lawyers argued that Sallie’s death sentence was imposed at the urging of a juror who was “patently biased” against him and was dishonest about her life experiences that would have affected her judgement during jury selection.

December 7, 2016 in Death Penalty Reforms | Permalink | Comments (1)

Tuesday, December 6, 2016

"Bill Would Create Law Clerkships on Capitol Hill"

The title of this post is the headline of this new National Law Journal article that discusses a terrific program that a terrific colleague has been advocating for.  Here is how the article begins:

Is the fifth time the charm for a proposed congressional clerkship program for new lawyers? It might be.

A bipartisan coalition of four U.S. senators on Monday introduced a bill that would create a dozen yearlong clerkships on Capitol Hill for recent law graduates—a long-discussed program modeled after judicial clerkships that aims to give lawmakers deeper legal resources while providing future leaders of the legal profession with legislative experience.

Previous iterations of the Daniel Web­ster Congressional Clerkship Program passed in the House of Representatives but stalled in the Senate amid gridlock and Republican concerns over unspecified costs. Now, advocates of the program say a fresh slate of Senate co-sponsors that spans the aisle, as well as changes that clarify the program won't require additional funds, mean conditions are finally ripe for the bill's passage.

"We have members who are excited to push the bill and we have a window here before the end of the lame duck," said Dakota Rudesill, a professor at Ohio State University Michael E. Moritz College of Law who has been working on the initiative for a decade and serves as the national coordinator of the Congressional Clerkship Coalition.

Sen. Mike Lee, R-Utah, is co-sponsoring the bill along with Patrick Leahy, D-Vermont, Ted Cruz, R-Texas, and John Hoeven, R-North Dakota. While Congress is tasked with creating laws, it's the only branch of the government without a designated clerkship or fellowship for young lawyers.

"Really, when you look at the greater landscape and you compare it to the well-established judicial clerkship experience and the executive branch attorney honors programs, there's really a void when it comes to the legislative arena," said Joe Gambino, a 2013 graduate of Georgetown University Law Center who worked on the clerkship initiative as a student in Rudesill's clinic, where the professor taught before moving to Ohio State. "This bill would really fill that void and allow some of the top talent from our nation's law schools to spend a formative year in the legislative branch. That's really not an option to them right now."

The problem isn't that there are too few lawyers on Capitol Hill, Rudesill said. Rather, it's that those lawyers often aren't focused on the nuts of bolts of making law: researching and drafting bills, statutory analysis, and utilizing congressional procedure rules. Instead, lawyers are typically tasked with policy making, constituent matters and messaging, Rudesill said.

Having clerks with a deep understanding of how to create laws will benefit Congress and will help elevate Congress' status within the legal profession, he added. "The legislative experience gap is significant because we do not have people in the top ranks of the legal profession who have done legislative work from the inside," Rudesill said. "We believe that correlates to less appreciation for the role of Congress and legislation in the U.S. legal system." The proposed clerkship is intended for promising young attorneys who will take their Capitol Hill experience into other leadership roles within the legal profession, not necessarily those aspiring to government careers, he said.

December 6, 2016 in Who Sentences? | Permalink | Comments (6)

SCOTUS unanimously upholds broad interpretation of insider trading in Salman

The Supreme Court handed down this morning its first significant criminal justice ruling of the Term via a unanimous decision in Salman v. US, No. 15-628 (S. Ct. Dec. 6, 2016) (available here).  Here is how the opinion authored by Justice Alito for a unanimous court gets started:

Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage.  48 Stat. 891, as amended, 15 U.S.C. § 78j(b) (prohibiting the use, “in connection with the purchase or sale of any security,” of “any manipulative or deceptive device or contrivance in contravention of such rules as the [Securities and Exchange Commission] may prescribe”); 17 CFR § 240.10b–5 (2016) (forbidding the use, “in connection with the sale or purchase of any security,” of “any device, scheme or artifice to defraud,” or any “act, practice, or course of business which operates . . . as a fraud or deceit”); see United States v. O’Hagan, 521 U.S. 642, 650–652 (1997).  Individuals under this duty may face criminal and civil liability for trading on inside information (unless they make appropriate disclosures ahead of time).

These persons also may not tip inside information to others for trading. The tippee acquires the tipper’s duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper’s duty, and the tippee may commit securities fraud by trading in disregard of that knowledge.  In Dirks v. SEC, 463 U.S. 646 (1983), this Court explained that a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit.  And, we went on to say, a jury can infer a personal benefit — and thus a breach of the tipper’s duty — where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id., at 664.

Petitioner Bassam Salman challenges his convictions for conspiracy and insider trading.  Salman received lucrative trading tips from an extended family member, who had received the information from Salman’s brother-in-law.  Salman then traded on the information.  He argues that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them.  The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a “‘gift of confidential information to a trading relative.’” 792 F.3d 1087, 1092 (CA9 2015) (quoting Dirks, supra, at 664).  Because the Court of Appeals properly applied Dirks, we affirm the judgment below.

December 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Intriguing discussion of how religion might have helped save the death penalty in Nebraska

584656d34e0b2.imageThis new local article, headlined "How religion impacted Nebraska’s death penalty vote," discusses the intersection of religious beliefs and support for capital punishment among Cornhuskers. Here are the details:

While the presidential election surprised most people, the results of one Nebraska vote shouldn’t have been a surprise. Nebraska voters resoundingly repealed a bill eliminating the state’s death penalty, with 61.2 percent voting to reinstate the punishment and 38.8 percent hoping to keep it off the books. As Nebraska is a solid Republican state, its death penalty vote matches national statistics. 72 percent of Republicans nationwide support the death penalty, according to a September Pew Research poll.

But for some Nebraskans, the death penalty vote wasn’t a political decision, but a decision based on religious beliefs. Christians are more likely to support capital punishment than other groups, according to the same Pew Research Poll. White evangelical Protestants are most in favor, with 69 percent supporting the death penalty, followed by white mainline Protestants at 60 percent. By a narrow margin, more Catholics oppose the death penalty than support it, at 46 percent to 43 percent.

But these views are contrary to official statements from some Christian leaders. Major religious groups, including the United States Conference of Catholic Bishops, the Evangelical Lutheran Church in America and the Episcopal Church, have published statements opposing the death penalty on religious grounds. This means people often disagree with their denomination’s official statements on the issue.

Allison Johnson, a minister at The Lutheran Center at the University of Nebraska-Lincoln, echoed the anti-death penalty sentiments of the ELCA church she serves on campus. If she’d been registered to vote in Nebraska instead of Wisconsin, Johnson would have voted to retain the bill, she said. “Jesus didn’t overcome systems of violence and injustice by more killing,” she said. “Jesus overcame them by absorbing them and dying himself.”

But the Rev. Jerry Thompson of St. Mark’s Episcopal Church at UNL said the issue is more complicated than that. Thompson has voiced opposition to the death penalty and voted to retain the bill. “I think of those passages where Jesus says, ‘Forgive your enemies, forgive those who have abused you, pray for them,’” Thompson said. “That doesn’t suggest to me putting them to death is part of the Christian way of life.”

But voting to reinstate capital punishment doesn’t make a Christian a hypocrite, he said. “You could hold religious beliefs and still vote in favor of keeping the death penalty,” Thompson said. “I don’t think that one thing necessarily leads to the other.” The complexity of the issue is one reason for the divide among Christians, Thompson said.

Plus, conversation about the death penalty doesn’t crop up much in day-to-day life, said the Rev. Steve Mills of St. Thomas Aquinas Catholic Church. While Mills is against capital punishment, it’s a low priority on his list of things to preach about, he said. “I know the church will speak about [the death penalty], but I don’t think the church has a huge push with it,” Mills said. “I think that’s kind of where it’s not clearly articulated frequently. It just comes up around election time.”

But not all pastors at UNL are against the death penalty on religious grounds. The Lutheran Church-Missouri Synod and the Southern Baptist Convention are two groups that favor it. Pastor Bill Steinbauer of the University Lutheran Chapel, a Missouri Synod church at UNL, said he rarely discussed capital punishment this fall, although politics was a hot topic. “I think when Christians tend to argue over things, this isn’t one of them,” Steinbauer said. “It’s one more of those things where we can agree to disagree. I don’t see that as being a big, divisive thing.”

He’s against the death penalty for reasons not found in the Bible. “I’m not morally against it; my reasons for being against it are more practical,” he said. “Based on the reading of Scripture, the Bible allows for the government to have capital punishment. But I would also say that it’s somewhat of a case-by-case thing too. If the government is undeniably corrupt and the government is enacting injustice upon people even through the use of the death penalty, no Lutheran pastor would stand up and say, ‘Hey, that’s perfectly OK.’”...

UNL student David Magnuson supports the government’s ability to pass punishment. “You know, it is wrong for someone to kill someone, even in retribution; that’s always wrong, but that doesn’t apply to governments,” Magnuson said. “The government is not a person; it is a higher entity, and its role is to be just through laws.” The senior criminal justice major is active both religiously and politically, serving in UNL’s Reformed University Fellowship youth group and interning for Nebraska Attorney General Doug Peterson....

Magnuson grew up in a non-denominational church in Texas, a state where he says “every Christian supports the death penalty.” “Here, it is different, and I’ve met people who don’t support it,” Magnuson said. “It’s a very complex issue, and it’s not a good topic. [But] I think the worst crime you can do is kill someone.” Magnuson said he rejects the argument that it’s cheaper to have a criminal spend life in prison. “Just paying for an inmate in prison is such a strain on society,” he said. “You’re paying to keep them alive. I think we should just kill them, and kill them fast. That’s what we do in Texas, and I think it’s great.”

The best argument he’s heard against the death penalty is that it gives inmates time to find God. But he said the death penalty can’t “stop God’s plan.” “It’s not the government’s role to play Jesus; It’s not,” Magnuson said. “That’s people’s role to play Jesus, and obviously, if we were in a perfect world, we wouldn’t deal with this problem.”

December 6, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (3)

"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."

The title of this post is the full headline of this new Atlantic piece.  Here is how it gets started (with links from the original):

Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.

“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”

The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement.  In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater.  Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population.  Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.

The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.

By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.  

For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.

December 6, 2016 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, December 5, 2016

Is Georgia really "rushing" to execute a defendant convicted of murder in 1990?

The question in the title of this post is prompted by this new New York Times commentary authored by Norman Fletcher, who "served on the Supreme Court of Georgia for over 15 years and was its chief justice from 2001 to 2005."  The NY Times gave this commentary the headline "Georgia’s Dangerous Rush to Execution," but the first sentence of the commentary states: "Tomorrow, the State of Georgia intends to execute William Sallie, who was convicted of killing a man in 1990." Though there could be many problems with Georgia's capital system, conducting an execution 26 years after a capital conviction does not seem to me like a "rush job." That lingo aside, here is what former Justice Fletcher goes on to explain in his commentary:

I served as a justice on the Supreme Court of Georgia for over 15 years. During that time I participated in dozens of death-penalty cases and affirmed many of them. That experience, though, exposed me to some of the significant flaws in the system — not just the injustice of the death penalty itself, but specific problems with the way capital cases are handled. Mr. Sallie’s case is a prime example.

Perhaps the biggest problem with Georgia’s system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers. Mr. Sallie, for example, missed a filing deadline for a federal review of his case by eight days, in part because he didn’t have a lawyer at the time to help him. And this isn’t just a delay tactic; he has several strong claims about constitutional failings during his trial that, if proved, could require the reversal of his conviction. As things stand, he will be executed without review.

Fundamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier.

I saw this firsthand as the presiding justice on the State Supreme Court in 1999, in an appeal of a post-conviction hearing for a man named Exzavious Gibson, who was 17 at the time of his crime. It was a critical proceeding, where a lawyer should have raised important details about whether he received adequate representation during his trial — except that, ironically, no volunteer attorney was available. Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself.

That sham of a proceeding is one of the most deplorable vignettes in Georgia’s legal history. But a majority of my fellow justices were less moved, and the court decided, 4-3, that people with death-penalty convictions have no right to counsel at that critical post-conviction stage — a ruling still in force today.

As a result, a door that would have been open to Mr. Sallie in almost any other state was closed to him in Georgia. If it were open, he would be able to present the facts about his trial, which appear to show serious problems with juror bias.

Mr. Sallie’s lawyers amassed volumes of public records and witness statements showing that one of the jurors, despite having a known bias, apparently misled the trial judge and the parties in order to join the jury. (She omitted vital, likely disqualifying information, including striking similarities between her traumatic history of divorce and interstate child custody fights and the domestic strife at the center of Mr. Sallie’s case.) In 2012, after his conviction, she bragged to an investigator that she had persuaded the jury, which was evenly divided between life and death, to vote unanimously for death.

The problem is not just Georgia. The United States Supreme Court has not ruled that the Constitution guarantees a right to an attorney during the critical post-conviction review stage in state courts. Georgia continues to deny counsel — and denies a man like William Sallie the opportunity to defend his life.

December 5, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"No Bars: Unlocking the Economic Power of the Formerly Incarcerated"

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility. But formerly incarcerated individuals face substantial obstacles to employment when they leave prison, from discrimination in hiring to occupational licensing requirements that exclude those with criminal records from specific professions.

This paper summarizes recent research on the employment of formerly incarcerated individuals, focusing in particular on the disproportionate effect of occupational licensing requirements.  The paper concludes with suggestions for policy changes that would reduce the friction this population experiences in the labor market.  These policies would help these individuals become more economically independent and have a positive impact on the economy as a whole.

December 5, 2016 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4)

Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive

Lead_960The title of this post is my (foolish?) reaction to this notable new Politico magazine article headlined "Jeff Sessions’ Coming War on Legal Marijuana: There’s little to stop the attorney general nominee from ignoring the will of millions of pro-pot voters." Here are excerpts from the start of the article which I follow with a (too brief) explanation for my blunt "bring it" bravado:

By nominating Senator Jefferson Beauregard Sessions III for attorney general, President-elect Donald J. Trump is about to put into the nation’s top law enforcement job a man with a long and antagonistic attitude toward marijuana. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot.” In April, he said, “Good people don't smoke marijuana,” and that it was a "very real danger" that is “not the kind of thing that ought to be legalized.” Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.”  In a floor speech earlier this year, Senator Sessions said: "You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”

Sessions has not shared his plans on marijuana enforcement, but if he chooses, he will be able to act decisively and quickly — more so perhaps than with any other of his top agenda items such as re-doubling efforts to combat illegal immigration and relaxing oversight of local police forces and federal civil rights laws. With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters, including those in his own state who approved the use of CBD. Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.

And so far, Congress has shown no interest in trying to stop the Sessions nomination, at least on this issue. Even members who are in favor of protecting states from federal interference on the marijuana issue have said they support Sessions’ confirmation as attorney general: “I strongly support Jeff Sessions as Attorney General,” said Representative Tom McClintock, Republican from California. “He is a strict constitutionalist who believes in the rule of law. I would expect that he will respect the prerogative of individual states to determine their own laws involving strictly intra-state commerce.”

There are dozens of reasons I think it would be quite foolish as a matter of constitutional law and sound federal policing priorities for future Attorney General Jeff Sessions to start his tenure by using broad federal police powers to criminally prosecute tens of thousands of players in a growing recreational marijuana industry.  This industry is already well-established and producing thousands of jobs and tens of millions in tax revenues in Colorado, Oregon and Washington; it is now gearing up for growth in Alaska, California, Massachusetts and Nevada and maybe Maine.

In the most simple of terms, it would be foolish for the Trump/Sessions Administration to try to "Make America Great Again" via tough federal pot prohibition enforcement because it would show to all who care to pay attention that the GOP's purported affinity for personal freedoms, free markets, limited government and states' rights is a huge bunch of hooey.  But I genuinely believe that most younger GOP Senators — e.g., folks like Ted Cruz, my wish pick for AG, Mike Lee, Rand Paul, Ben Sasse, Tim Scott— have always voiced a genuine commitment to personal freedoms, free markets, limited government and states' rights.  Consequently, I do not think these important GOP voices are going to be quick to bless any efforts by future AG Jefferson Beauregard Sessions III to bring back an era of national federal Prohibition enforcement by executive fiat.

Moreover, and completely missing from the facile analysis in this superficial Politico article, even if future AG Jeff Sessions were eager to bring back an era of national federal Prohibition enforcement by executive fiat for the emerging recreational marijuana industry, there will still be the bigger and stronger and much more consequential medical marijuana industry chugging along — especially in so many swing/red states that were critical to the election of Donald J. Trump circa 2016.  I am thinking here specifically of now-red states like Arizona and Florida and Michigan and Ohio and Pennsylvania.  Those now-red states alone add up to nearly 100 electoral votes that a whole bunch of Dems would love to win back in 2018 and 2020; and they are all states that, I think, could easily go back into the Dem column if/when establishment Dems finally figure out that medical marijuana reform in a winning issue worth promoting forcefully.  (I have blogged here an explanation for my claim in a post at my other blog that Voter math suggests a possible Hillary landslide IF she had championed marijuana reform.)

Importantly, in this post I have only outlined some obvious political/policy reasons for why I think it would be foolish (and ultimately unlikely) for future AG Jefferson Beauregard Sessions III to bring back an era of national federal pot Prohibition enforcement by executive fiat.  In a future post, assuming readers are interested, I can explain all the reasons I think the other two branches of the federal government — Congress and the federal judiciary — can and would and should find an array of means to "stop the attorney general nominee from ignoring the will of millions of pro-pot voters."  Given that Congress and federal judges over the last eight years have done a whole lot to preclude the Obama Administration from doing too much by executive fiat,  everyone concerned about criminal justice and marijuana policy in the Trumpian future much keep in mind that the Framers gave us a wonderful federal system of check-and-balances that has been pretty effective at keeping the big bad federal government from doing too many stupid things that are obviously against the considered will of the people.

Just sayin'

Cross-posted at Marijuana Law, Policy, and Reform

December 5, 2016 in Criminal justice in the Trump Administration, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13)

Anyone interested in SCOTUS speculating after Ohio repeat execution case again left in limbo?

The question in the title of this post emerges from the latest SCOTUS order list here, which does not mention in any way Broom v. Ohio.  This accounting of Broom from SCOTUSblog's most recent Relist Watch will remind readers why I am paying (too?) much attention to this case:

16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4, November 10 and November 22 conferences)

For the first few relists in early November, I was speculating that the Justices were waiting for one or more of them (e.g., Justices Breyer and Ginsberg and ____) to complete a dissent from the denial of certiorari.  But now that this unique (and not-so-complicated) case has been in front of SCOTUS for well over a month, I am starting to think the Justices are inclined to hold on to this case until a replacement for Justice Scalia is named; once that new possible Justice is named, the current Justices can and will all have a better sense of whether and how the new Justice might break a possible 4-4 tie in this case.

Before urging readers to check out all the prior posts linked below (and others), I cannot help but flag a phrase in this post from Sept 2009 when Ohio first tried to move forward with a second execution attempt: "it is hard to predict if and when and how the US Supreme Court will be brought into this fray."  It is perhaps worth recalling that this phrase was written when Justices Scalia, Souter and Stevens were all on SCOTUS.  Now, a (lucky?) seven years later, we have Justices Kagan and Sotomayor and an open seat.

Related posts (most from 2009) on botched Broom execution attempt and its aftermath:

December 5, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Shining spotlight on ugly dark racial realities of New York State's prison and parole systems

The New York Times has an important new series of articles examining biases in New York State's prison and parole systems. Here are links to and key passages from the first two articles:

"The Scourge of Racial Bias in New York State’s Prisons"

A review by The New York Times of tens of thousands of disciplinary cases against inmates in 2015, hundreds of pages of internal reports and three years of parole decisions found that racial disparities were embedded in the prison experience in New York.

In most prisons, blacks and Latinos were disciplined at higher rates than whites — in some cases twice as often, the analysis found.  They were also sent to solitary confinement more frequently and for longer durations.  At Clinton, a prison near the Canadian border where only one of the 998 guards is African-American, black inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.

A greater share of black inmates are in prison for violent offenses, and minority inmates are disproportionately younger, factors that could explain why an inmate would be more likely to break prison rules, state officials said. But even after accounting for these elements, the disparities in discipline persisted, The Times found.

The disparities were often greatest for infractions that gave discretion to officers, like disobeying a direct order.  In these cases, the officer has a high degree of latitude to determine whether a rule is broken and does not need to produce physical evidence.  The disparities were often smaller, according to the Times analysis, for violations that required physical evidence, like possession of contraband.

"For Blacks Facing Parole in New York State, Signs of a Broken System"

An analysis by The New York Times of thousands of parole decisions from the past several years found that fewer than one in six black or Hispanic men was released at his first hearing, compared with one in four white men.

It is a disparity that is particularly striking not for the most violent criminals, like rapists and murderers, but for small-time offenders who commit property crimes like stealing a television from a house or shoplifting from Duane Reade — precisely the people many states are now working to keep out of prison in the first place.

Since 2006, white inmates serving two to four years for a single count of third-degree burglary have been released after an average of 803 days, while black inmates served an average of 883 days for the same crime.

December 5, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 4, 2016

After securing right of self-representation, Dylann Roof says he now wants lawyer help for guilt phase of capital trial

Mass murderer Dylann Roof is making headlines again, as reported in this new BuzzFeed News piece, "Dylann Roof Has Changed His Mind And Wants His Attorneys Back: The alleged Charleston church shooter had been representing himself in court, but on Sunday he asked for his lawyers back for part of his trial." Here are the basics:

Dylann Roof, the white supremacist who allegedly killed nine people at a historic black church in Charleston last year, on Sunday asked a judge to allow his defense attorneys to once again represent him at trial — but only through part of the case.

Roof successfully petitioned last week to act as his own lawyer during the death penalty trial in accordance with his rights under the Sixth Amendment. He was then involved in the jury selection process, but was assisted by stand-by counsel. However, Roof changed his mind on Sunday, filing a motion and handwritten letter asking US District Judge Richard Gergel to let his lawyers return, but only for the phase of the trial in which jurors will decide whether Roof is guilty or innocent.

“I would like to ask if my lawyers can represent me for the guilt phase of the trial only,” Roof wrote. “Can you let me have them back for the guilt phase, and then let me represent myself for the sentencing phase of the trial?”

“If you would allow that, then that is what I would like to do,” Roof wrote, signing his name. Judge Gergel is yet to make a decision on the motion, but he had been deeply critical of Roof’s original decision to represent himself, telling the defendant it was “strategically unwise” and “foolhardy.”

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Congress finally gets one bipartisan piece of federal criminal justice reform to Prez Obama's desk ... thanks to Trump's victory?

Thanks to this posting by Ted Gest at The Crime Report, headlined "Finally, Some Congressional Action on Criminal Justice," I learned that Congress last week was able to use its lame-duck days to finally enact a need reauthorization on the 2004 Justice for All Act.  Here are the basics:

It took a lame-duck session to do it, but Congress has approved one of its most significant pieces of criminal justice legislation during its two-year term that ends this month: the Justice for All Act. The measure, which had considerable bipartisan support, should help the testing of evidence in rape cases, expand post-conviction DNA testing, strengthen crime victims’ rights, and help states improve their systems to represent poor people in criminal cases.

The Senate approved the bill [late Thursday] after the House okayed it earlier this week, sending the measure to President Obama for his signature. It expands on a law enacted in 2004 during George W. Bush’s presidency.

Sen. Patrick Leahy (D-VT), the top Democrat on the Judiciary Committee and a former prosecutor, was a leading sponsor of the bill. He said yesterday that during his many years as a leader of the Judiciary panel, “It has become clear to me that our system is deeply flawed – there is not always justice for all.” When the bill passed the House on Tuesday, Judiciary Committee Chairman Bob Goodlatte (R-VA) said it provides “law enforcement resources to identify the guilty and free the innocent.” Other major sponsors were Sen. John Cornyn (R-TX) and Reps. Ted Poe (R-TX) and Jim Costa (D-CA).

The bill ensures that at least least 75 percent of federal funds for handling “rape kits” of evidence submitted by victims will go toward direct testing and not other purposes and offers incentives to states to hire full-time Sexual Assault Nurse Examiners, especially in rural and under-served areas. Crime victims would get more access to restitution funds under the bill. It also settles disputes involving the federal Prison Rape Elimination Act (PREA), which threatens to cut off federal anticrime aid to states that don’t take sufficient action to protect inmates against sexual assault. The new law protects aid to states under the separate Violence Against Women Act from being cut in states that don’t comply with PREA. It allows states six years to abide by PREA before their federal funds are cut off, and requires greater transparency from states on the status of their PREA implementation.

The bill renews the Kirk Bloodsworth Post-Conviction DNA Testing program, which provides funding to states to help defray costs associated with post-conviction DNA testing.

I am quite pleased to seem some (minor?) federal criminal justice reform finally make it through this Congress and get to the desk of Prez Obama. (And this section-by-section accounting of the legislation leads me to think that it perhaps should not be considered "minor" even though it seems unlikely to be getting much press and advocacy attention.)

And, as the title of this post suggests, I am quite unable to avoid thinking about whether the passage of this criminal justice legislation was made possible by the new Trumpian world order in Congress. For whatever gridlock reasons, the seemingly non-controversial Justice for All Act could not get to the desk of Prez Obama before the November election. But, for whatever new-world-order reasons, this legislation slid right on through the lame duck Congress no that nobody needed any longer to be focused only on election-cycle rhetoric and posturing about crime and justice reform.

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Second Circuit hints that sentence reduction might well be justified whenever guideline range is increased "significantly by a loss enhancement"

I am grateful to Harry Sandick for alerting me to this seemingly little (and easily overlooked) opinion handed down by a unanimous Second Circuit panel late last week.  Stephanie Teplin and Harry Sandick discuss the case in this thoughtful blog posting, and here are key passages from their coverage:

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level — a sentencing scheme for fraud that is “unknown to other sentencing systems” — required the district court to reconsider whether a non-Guidelines sentence was warranted....

Judge Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “use[s] loss amount as the predominant determination of the adjusted offense level for monetary offenses.”  However, he observed that “the Commission could have approached monetary offenses quite differently.  For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss.”

The “unusualness” of the Guidelines system, the Court held, can be considered by a sentencing judge under Kimbrough v. United States.  “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.”  The Court did not hold that the sentences were in error, but remanded for the district court’s reconsideration of the sentences....

Judge Newman has long been a skeptic of the Guidelines approach to sentencing.  In this short opinion, he cites the pre-Booker decision in United States v. Lauersen, 348 F.2d 329 (2d Cir. 2003), an opinion he authored at a time when the Guidelines were mandatory, except for downward departures.  Lauersen held that where the cumulative impact of overlapping Guidelines enhancements (in that case, for loss amount and for defrauding a financial institution of more than $1 million) resulted in an overly long sentence, the district court could downwardly depart.... 

In Algahaim, Judge Newman carries this concept forward to the more open-ended sentencing regime given to us by Booker, Gall and Kimbrough.  Many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.”  E.g., United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (Rakoff, J.).  Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record.  See ABA Criminal Justice Section, “A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes” (November 10, 2014) (last visited December 1, 2016).  To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement” leads to an unduly long sentence.

Because Judge Jon O. Newman was my very first boss as a lawyer (I served as his law clerk from 1993-94 starting just months after my graduation from law school), I am always partial to his opinions and especially as to his opinions about sentencing issues. And, as regular readers know, I am always partial to judicial opinions that thoughtfully explain whether and when the federal sentencing guidelines should or should not be followed. And so, perhaps my partiality is going to bubble over when I assert that Judge Newman is being especially astute and shrewd in his pro-discretion sentencing work in United States v. Algahaim, in part because the particulars of the loss enhancement in Algahaim are actually not all that major.

Specifically, in Algahaim, the two defendants who were appealing their convictions and sentences were subject to offense-level increases for loss of "only" 10 and 12 points  under USSG § 2B1.1(b)(1).  Though such loss enhancements certainly appear significant when added to a base offense level of 6, in many other fraud cases the loss enhancement under 2B1.1(b) can commonly add 16 or 20 or 24 or even up to 30 points.  Despite those realities, the Second Circuit in Algahaim has now called just a 10-level loss enhancement in a fraud case "significant" and also has said this enhancement is alone large enough to merit serious consideration of a below-guideline sentence.  For that reason, I would now expect lots of astute and shrewd future white-collar defendants throughout New York and elsewhere to be citing to Algahaim to bolster arguments for below-guideline sentences whenever the guideline range is moved up a lot by loss calculations.

December 4, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3)

Saturday, December 3, 2016

Another detailed and depressing report on the harms of bad sentencing in the nation's capital

The Washington Post has run a series of articles under the title Second-Chance City seeking to thoroughly "examine issues related to repeat violent offenders in the District of Columbia." The latest lengthy article in the series, headlined "Second-chance law for young criminals puts violent offenders back on D.C. streets," tells a bunch of sad and sobering stories. It starts this way

Hundreds of criminals sentenced by D.C. judges under an obscure local law crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation’s capital.

The original intent of the law was to rehabilitate inexperienced criminals under the age of 22.  The District’s Youth Rehabilitation Act allows for shorter sentences for some crimes and an opportunity for offenders to emerge with no criminal record.  But a Washington Post investigation has found a pattern of violent offenders returning rapidly to the streets and committing more crimes.  Hundreds have been sentenced under the act multiple times.

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes.  The criminals have often repaid that leniency by escalating their crimes of violence upon release.

In 2013, four masked men entered the home of a family in Northeast Washington, held them at gunpoint and ransacked the house.  One of the invaders, Shareem Hall, was sentenced under the Youth Act. He was released on probation in 2015.  Almost exactly a year later, Hall and a co-conspirator shot a 22-year-old transgender woman, Deeniquia Dodds, during a robbery in the District, according to charging documents.  It is unclear who pulled the trigger.  Police said the pair were targeting transgender females.  Dodds died nine days later.  “You’re telling me you can come back out on the streets and rob again, hold people hostage again, kill again — because of the Youth Act?” said Joeann Lewis, Dodds’s aunt.

Hall is one of at least 121 defendants sentenced under the Youth Act who have gone on to be charged with murder in the District since 2010, according to The Post’s analysis of available sentencing data and court records.  Four of the slayings, including the killing of Dodds, occurred while the defendants could still have been incarcerated for previous crimes under mandatory minimum sentencing, and 30 of the killings took place while the suspects were on probation.

Youth Act offenders accounted for 1 in 5 suspects arrested on homicide charges in the District since 2010, a period that has seen a recent surge in homicides and growing public concern about repeat violent offenders.  The cycle of violence has been largely shrouded from public view or oversight. D.C. judges do not track the use of the law, which provides a collection of benefits to violent felons that experts say does not exist anywhere else in the country.

After a young adult is convicted of a crime, the Youth Act allows judges to decide whether the offender can benefit from rehabilitation and should receive special treatment.  The law gives felons a chance to have their convictions expunged from the public record if they serve out their sentences or complete their probation.  Because of the way the law was written, Youth Act offenders also can avoid mandatory prison time for certain violent gun crimes.  The Post also found that judges applying the Youth Act generally give lighter sentences across the board.

The law was enacted in 1985 during the mayoral administration of Marion Barry (D), at a time when jails were being filled with young men charged with drug crimes, in an attempt to protect African American youths from the stigma of lengthy prison sentences. “We have a value in this city that youthful offenders should be rehabilitated,” said D.C. Mayor Muriel E. Bowser. “But I don’t think anybody expects leniency for violent criminals.”

The judges declined The Post’s requests for interviews and also declined to comment about specific cases. In a written statement, the judges said they weigh many factors in sentencing, including the ages of offenders and the effect of their crimes on the victims. “In considering whether to sentence a young person under the Youth Act, generally judges are aware that a felony conviction can create lifelong obstacles to becoming a good and productive citizen,” wrote Lynn Leibovitz and Milton Lee, who are, respectively, the presiding judge and deputy presiding judge of the criminal division of the D.C. Superior Court.

December 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27)

Friday, December 2, 2016

Reviewing another week of developments and questions from Marijuana Law, Policy & Reform

Absent complaints from readers, I think I am going to return to my habit of closing up my "blogging work-week" in this space by providing a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform.  So:

December 2, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

"The Right to Redemption: Juvenile Dispositions and Sentences"

The title of this post is the title of this notable new paper authored by my colleague Katherine Hunt Federle and now available via SSRN. Here is the abstract:

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems.  These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders.  In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing.  The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.  State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of ‘juveniles’ immaturity militates in favor of a right to redemption.  This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed.  The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted.  The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes.  The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions.  This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.

December 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

When will Prez-Elect Trump start bringing "law and order" to deadly Chicago?

120116-ChicagoMurdersThe question in the title of this post is my first reaction to this lengthy depressing USA Today article's headline, "Chicago hits grim milestone of 700 murders for 2016 and the year's not over." Here are particulars:

Mired in a level of violence not seen in nearly two decades, the nation’s third largest city recorded its 701st murder on Thursday, reaching a stunning milestone before year's end.

Chicago has seen the number of killings increase by about 58% since last year, according to police department data. The city is on pace to record the most murders in a year since 1997, when the police department reported 761 killings. Chicago Police have also reported more than 3,300 shooting incidents in 2016, an increase of about 49% compared to the same time last year.

Early Thursday morning, Chicago Police responded to the latest fatal shooting — a 19-year-old man found dead on the street on the city’s West Side with gunshot wounds to his head and chest. As of Thursday afternoon, no one had been arrested for the shooting of the teen. “The levels of violence we have seen this year in some of our communities is absolutely unacceptable,” CPD Superintendent Eddie Johnson said of a murder rate the city has not seen since the end of crack-cocaine epidemic when a drug war between gangs fueled the rise in murders. “CPD will use every tool available to hold violent offenders accountable and will continue to work strategically to address crime and uphold its commitment to rebuild public trust.”

Johnson has blamed the violence on a combination of increased gang activity and weak gun laws that he says don't dissuade convicted felons from carrying and using weapons.

But anti-violence activists say the killings — the bulk of which are occurring in a few low-income and predominantly African-American neighborhoods on the city’s South and West Sides — also raise concerns that a dark edge has set into young people in some of the communities most impacted by the violence. Andrew Holmes, a longtime Chicago-based anti-violence activist, noted that fatal shootings increasingly appear to have been sparked by fights that started on social media and that too frequently the assailants in the deadly incidents are motivated by smallest of slights.... “It’s more personal and about more than the easy access to guns,” Holmes said. “This is driven so much by self-hatred…and because there is an easy access to guns, the first thing they do is go to the gun to settle a feud.”...

About 47% of Chicago's black men, ages 20 to 24, are unemployed, according to a report published earlier this year by the University of Illinois at Chicago’s Great Cities Institute. The national unemployment rate for young black men hovers around 31%. “The problems we’re having have everything to do with opportunity,” [community activist Diane] Latiker said. “It’s always been that way. Chicago has long been one of a ‘Tale of Two Cities.’ Nothing has changed.”

The last two months have been particularly grim. Chicago recorded 316 shooting incidents and 77 murders last month, more than doubling the number of slayings the city saw last November. In October, police tallied 353 shooting incidents and 78 murders, 49 more murders than the same month last year. The violence toll reported by the Chicago Police Department includes only killings that police have determined to be criminal acts. Not included in the data are the 11 fatal police-involved shooting incidents in 2016 — including four officer-involved shootings over a 10-day stretch in November.

The surge in violence coincides with the fraying of relations between the department and the city’s African-American residents following the release last year of video showing the police shooting death of 17-year-old Laquan McDonald. But police officials and community activists downplay the impact that such strained relations is having on the surge in violence.

Social scientists and pollsters suggest that the rise in gun violence in Chicago is having a disproportionate impact on Americans’ perception about crime nationwide. The city has reported over 100 more murders this year than New York City and Los Angeles combined, according to the departments’ data. The murder toll in the two large U.S. cities is about the same as last year.

While the nationwide violent crime rate remains near a 30-year low, nearly 57% of Americans said that crime has gotten worse since 2008, according to a Pew Research Center survey published in November. President-elect Donald Trump on the campaign trail repeatedly spoke out about Chicago’s violence, at one point even comparing the city to a “war-torn country.”

The murder rate for the nation’s 30 largest cities is projected to increase by 13.1% for 2016, according to an analysis published in September by the Brennan Center for Justice at New York University. But nearly half of the projected increase in murders across the U.S. could be attributed to killings in Chicago, the analysis found. (At midyear, the nation’s biggest cities were cumulatively on pace to record 496 more murders than 2015, with Chicago projected to account for 234 of those killings.) “The ‘national” increase in murders…in other words, may owe more to profound local problems in a few Chicago neighborhoods than national trends,” the Brennan Center report concludes.

Mayor Rahm Emanuel announced plans to expand the Chicago’s 12,500-member police force by nearly 1,000 officers over the next two years—an effort that includes bolstering the department’s detective ranks. The department has about 300 fewer detectives than it did in 2008. The department has also stepped up traffic enforcement, parole compliance checks and social service intervention for high-risk individuals in some of the city’s most violence-plagued neighborhoods.

Latiker argued that policing efforts alone will have limited effectiveness in solving Chicago’s violence problems. “We can’t lock up our way out of this problem,” Latiker said. “We need police. There’s no question about that. But you can’t take everything in the basket and throw it at police and tell them to take care of it.”

December 2, 2016 in National and State Crime Data, Who Sentences? | Permalink | Comments (6)

Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21

This new Politico article, headlined "Trump: Supreme Court pick coming 'pretty soon'," suggests that SCOTUS fans may not have much longer to wait to see who might be selected to replace the late great Justice Antonin Scalia on the US Supreme Court:

President-elect Donald Trump said Thursday night he had narrowed his choices for a potential Supreme Court nominee to "three or four" candidates and that a decision would be coming "pretty soon."

Appearing on Fox News from Cincinnati, Ohio, where the president-elect held the first leg of his celebratory "thank you" tour Thursday, Trump told host Sean Hannity that an announcement on a potential judicial appointment is not too far off. "We're going to have to appoint very soon.  We're going to have to come up with a name," Trump said. "I'm looking -- I'm down to probably three or four [candidates].  They are terrific people, highly respected, brilliant people and we'll be announcing that pretty soon too."

The president-elect also assured Hannity that his final selections would be constitutional "originalists."  During his presidential campaign Trump unveiled a list of 21 candidates whom he has said were chosen in the mold of Justice Antonin Scalia, who died Feb. 13.

I have outlined at great length what I hope to see from a SCOTUS pick in this prior post titled "Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list."  Because I seriously doubt that Prez-Elect Donald Trump and/or his advisers care one whit about any of the matters I care about when it comes to SCOTUS appointments, I am not expecting to be pleased or excited by The Donald's pick.  But I am genuinely pleased and excited to be able to imaging a full and fully-functioning Supreme Court in the not-too-distant future.

A few prior related Trumpian SCOTUS posts:

December 2, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?

Abc_dylann_roof1_wg_150716__16x9_992The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:

Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.

Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.

But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”

Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.

I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.

I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.

Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.

Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.

And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....

Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.

In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.

I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his her own inability to serve as his her own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.

A few of many prior related posts on prosecution of Dylann Storm Roof:

December 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Thursday, December 1, 2016

US Sentencing Commission getting an early start on possible guideline amendment

Traditionally, the US Sentencing Commission holds a meeting in January to proposed amendments to the federal sentencing guidelines for the year. But via email today I received this notice about the USSC getting off to a quicker start this season:

Please join the United States Sentencing Commission for a public meeting on December 9th at 11:30 a.m. (ET) where commissioners may vote to publish proposed amendments to the federal sentencing guidelines.

Amendments proposed during the meeting will stem from this year’s list of policy priorities. The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Suite 2-500 (South Lobby). Please note that if you cannot attend in person, it will be broadcast live.

The agenda is as follows:

  • Vote to Adopt August 2016 Meeting Minutes
  • Report from the Chair
  • Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

December 1, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Fourth Circuit panel rejects North Carolina's efforts to defendant constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.”  See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment.  The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3).  For the reasons set out below, we affirm the judgment of the district court.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

December 1, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

Download (5)I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform.  But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late.  Here are the substantive highlights:

Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.

“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”

“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."

Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.

The department announced additional details regarding these efforts:

Building a school district within the federal prison system....

Reforming federal halfway houses....

Covering the cost of state-issued IDs prior to inmates’ release....

Enhancing programs for female inmates....

These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.  

I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons.  And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration.  in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.  

Sigh and Grrr.

December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)

NC Republican Senator reiterates his commitment to federal statutory sentencing reform

This notable new local story from North Carolina, headlined "Tillis says he may not return if bills like sentencing changes aren’t passed," provides further reinforcement for my generally positive perspective on the prospects for federal statutory sentencing reform in 2017. Here are excerpts:

Sen. Thom Tillis said Wednesday that he may not seek re-election in 2020 unless a sweeping overhaul of the nation’s prison sentencing system is passed. Tillis, R-N.C., has sought to make revamping the nation’s criminal justice system one of his signature issues since arriving in Washington in 2015, leaning on his experience in pushing through North Carolina’s Justice Reinvestment Act when he was state House speaker in 2011.

Tillis said North Carolina showed that such measures could get done, even over doubts that anything less than a tough-on-crime stance would be politically damaging. He told a forum on juvenile justice in Washington that “I don’t run again until 2020, and if we’re not able to get things like this done, I don’t have any intention of coming back.”...

He expressed frustration that the Senate hasn’t been able to move the Sentencing Reform and Corrections Act of 2015, a bipartisan measure that would reduce prison sentences for some nonviolent drug offenses, give judges more discretion with lower-level drug crimes and provide inmates early release opportunities by participating in rehabilitation programs....

Republicans and conservatives – from Sen. John Cornyn, R-Texas, to Sen. Rand Paul, R-Ky., to the Koch brothers – found themselves largely in agreement with Obama, the NAACP and the American Civil Liberties Union on the need for sweeping changes to reduce prison sentences.

But the Senate bill has been in legislative limbo. Some conservative lawmakers, such as Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, suggested that reducing sentences would lead to dangerous criminals being released. Even a much-heralded compromise in April to ease critics’ concerns failed to get the bill to the Senate floor.

Tillis, who appeared at Wednesday’s forum hosted by The Washington Post with Sen. Chris Coons, D-Del., said he had a solution for breaking the deadlock. “We need to tell the far-right and the far-left to go away and have people in the center solve the problem,” Tillis told the audience. “It is time to tell the far-left and the far-right to get productive or get out of the way because we need to solve this problem.”

December 1, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Wednesday, November 30, 2016

"The Coming Federalism Battle in the War Over the Death Penalty"

The title of this post is the title of this notable new paper authored by Michael Mannheimer and now available via SSRN. Here is the abstract:

From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct.  However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States.  And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level.  While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level.  However, no federal courts of appeals has yet addressed these objections.

Currently, thirty-one States authorize capital punishment while nineteen do not.  The category of non-death penalty States includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large States, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty.  It is also likely that capital punishment will be retained in many States, particularly in the South and West, and at the federal level.  Given these premises, the use of the federal death penalty in non-death States, which is now mostly a side issue in the death penalty debate, may take on more prominence.  As the demand for retribution against the very worst murderers in these States continues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court.  Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.

November 30, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"

Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting.  For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."  

Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing.  Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.  

Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers.  I recommend the piece in full, and here are excerpts:

Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.”  One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.

Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses.  The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups.  Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....

On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs.  This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies.  The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....

Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...

Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.

November 30, 2016 in Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (3)

Two new headlines from the same paper highlighting (inevitable?) sentencing disparities

As I opened my Google News feed and turned to my sentencing section, these two headlines from the Washington Post jumped out at me:

Here are some key passages from each piece. First, the latest on serial/mass rapist Darren Sharper:

Former NFL star Darren Sharper was sentenced to 20 years in prison on Tuesday for drugging and raping two women in Los Angeles.  The sentence came as part of a plea deal that saw Sharper sentenced to 18 years in prison in Louisiana in August for drugging and raping up to 16 women in four states, including California and Louisiana, as well as Arizona and Nevada.  Sharper will serve the sentences simultaneously.

Tuesday marked the end of Sharper’s sentencing hearings, but the emotional trauma he inflicted upon the victims of his sexual assaults lives on.  “I can only imagine myself lying there like a vegetable while he took advantage of my body without my permission,” one of the victims said at Tuesday’s hearing (via the Los Angeles Times).  “I have lost every bit of self confidence I’ve ever had and am always in fear while alone. It doesn’t matter whether it’s day or night, I can see a guy and automatically in my head think, ‘What if this guy tries to rape me?’ ”

And now another dispatch from the never-ending federal drug war:

When Lori Clare Kavitz’s sons were 3 and 4 years old, ... her husband ... grabbed a gun and killed himself in front of her dad.... The aftermath was hard. “My emotional trauma and fear of not being able to provide for [my sons] led me to choices that I will always regret,” she says. Her regretful decision-making was not of an uncommon variety: After her husband’s death, she got involved with the wrong guy. He started dealing meth from their home, and when he was arrested, the state went after her, too, casting her as his assistant and charging her with conspiracy to distribute meth.

The man who sold them the meth cooperated with prosecutors, was sentenced to 14 years in prison, and is now out. Her boyfriend got 20 years. Lori Kavitz got 24 years. “She kept her mouth shut, didn’t say anything,” her son, Collin, tells the Watch. “He opened his mouth and tried to pin it all on her.”

Kavitz hasn’t seen her two sons in more than a decade because it’s too expensive for them to travel more than a thousand miles to visit her in prison in a different state. “I have 3 grandchildren that I have never met as I am serving my time in Florida and I am from Iowa. Too far for young struggling families to travel,” Kavitz writes. She’s one of thousands of nonviolent drug offenders hoping to have their sentences commuted by President Obama before President-elect Donald Trump replaces him in office — less than two months from now.

November 30, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Tuesday, November 29, 2016

Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?

Washington_terry1The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning.  The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:

Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.

Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities.  I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC.  I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.

Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas.  As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69.  But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence.  In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).

I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation.  Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled.  (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.)  Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.

Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.  My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins.  But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess.  For Bobby James Moore, this is obviously now a matter of life and death.  But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?

November 29, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"

Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG.  I recommend the lengthy piece in full, and here is just a taste:

Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.

Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.

But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.

We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....

Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.

President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....

These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....

This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.

As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.

November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)