Friday, November 21, 2014
"'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty"
The title of this post is the title of this notable new paper by Michael Perlin available via SSRN. Here is the abstract:
The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.
This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.
Thursday, November 20, 2014
"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"
The title of this post is the title of this notable new paper by Ronald Cass now available on SSRN. Here is the abstract:
Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals. Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change. While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty.
This change cries out for immediate attention ― and for changes to the law. This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.
Wednesday, November 19, 2014
"Death, Desuetude, and Original Meaning"
The title of this post is the title of this notable new paper by John Stinneford now available via SSRN. Here is the abstract:
One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law.
This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.
Tuesday, November 18, 2014
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
The title of this post is the title of this very interesting article with empirical research on private prisons and time served. The piece, authored by Anita Mukherjee and now available via SSRN, has this abstract:
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many. My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk.
These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Wonderful new on-line resource, Collateral Consequences Resource Center, now available
I am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center. This posting by Margy Love provides this background and something of a mission statement:
The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014. We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.
The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served. Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.
The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.
Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies. And here are links to a few recent notable blog postings:
- More states rely on judicial expungement to avoid collateral consequences
- Minnesota project examines how different life would be with a criminal record
- Dismissed Charges Not Always the Best Outcome?
Marshall Project investigation, "Death by Deadline," looks at capital appeals impact of AEDPA
As noted here yesterday, The Marshall Project, an important new reporting outlet focused on criminal justice issues, is now running full steam and has now lots of notable new content on its slick website. And the big first feature from The Marshall Project is a lengthy two-part investigative report titled "Death by Deadline" focused on the legal and practical impact of the capital appeal restriction in the Anti-Terrorism and Effective Death Penalty ACt (AEDPA). Below are links and key passages from each part of the report.
An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans' Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent on Thursday, when Chadwick Banks was put to death in Florida.
[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.
Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession's lowest forms of punishment. The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals.
Investigation reveals "mandatory" Minnesota gun sentence not imposed in majority of cases
This interesting local investigative press report from Minnesota provides further evidence that mandatory minimum sentencing schemes are rarely applied consistently or evenly. The article is headlined "Mandatory sentences not always the case for Minnesota gun crimes," and here are excerpts:
Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.
Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge....
Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.
Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.
But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."
Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so. “If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme.”
Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"
Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.
But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman....
NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.
Saturday, November 15, 2014
Examining Crawford after a decade
First Impressions, the online companion to the Michigan Law Review, has this new on-line symposium titled "Crawford v. Washington: A Ten Year Retrospective." Here is how the editors introduce the pieces and links thereto:
No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.
The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.
We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.
Come Back to the Boat, Justice Breyer! by Richard D. Friedman
- Crawford v. Washington: The Next Ten Years by Jeffrey L. Fisher
The Crawford Debacle by George Fisher
Confrontation and the Re-Privatization of Domestic Violence by Deborah Tuerkheimer
The Frame of Reference and Other Problems by Richard D. Friedman & Jeffrey L. Fisher
Friday, November 14, 2014
Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication
The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group). Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:
This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review. We disagree.
Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines. Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful. We affirm the denial of Spencer’s motion to vacate his sentence.
At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:
At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment. In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.
Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.
Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong. As it turns out, he was right. Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.
November 14, 2014 in Advisory Sentencing Guidelines, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack
NY Times debates "Parole When Innocence Is Claimed"
With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.
Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?
Here are the contributions, with links via the commentary titles:
I Feared I’d Die in Prison for Maintaining My Innocence by Fernando Bermudez
The System Needs a Small Safety Valve for the Innocent by Paul Cassell
Don’t Incentivize Claims of Wrongful Conviction by Joshua Marquis
Confessions Are Not Reliable by Daniel Medwed
Requiring an Admission of Guilt Is Reasonable by William G. Otis
One of Many Factors to Consider by Leslie Crocker Snyder
Thursday, November 13, 2014
"'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5"
The title of this post is the title of this notable new article by Michael Perlin now available via SSRN. Here is the abstract:
The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront — in a wide variety of cases — the impact of PTSD on sentencing decisions. And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.
My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism — an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry — in this entire inquiry.
On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand. Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences. Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic.” I believe it is essential we give it a new and urgent focus.
I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition — especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner. First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory), the role of sanism, and the significance of therapeutic jurisprudence. Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes. I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.
Wednesday, November 12, 2014
Split South Carolina Supreme Court declares Miller retroactive AND applicable to state's nonmandatory LWOP sentencing scheme
As reported in this local article, "at least 15 South Carolina felons serving life sentences for homicides they committed while they were minors are eligible to return to court to be resentenced for their crimes, a divided S.C. Supreme Court ruled Wednesday." Here are the basics of the ruling:
The 3-2 decision cites the U.S. Supreme Court's 2012 decision in Miller v. Alabama, which banned mandatory life sentences without the possibility of parole in instances where juveniles commit murder....
The [Miller] ruling applied to mandatory sentences and the U.S. Supreme Court justices avoided declaring whether the new standard should be applied retroactively to older cases. South Carolina's high court, however, not only called for a rehearing of older cases but applied the new parameters to all juveniles cases where life sentences were imposed, even when that decision was at a judge's discretion.
Colin Miller, an associate professor at the University of South Carolina School of Law, and who participated in a moot court dry run of the Supreme Court arguments with attorney John Blume, called the high court's ruling "significant" and a victory for juvenile rights. He said the court went beyond what many observers expected in extending projections to all juveniles facing life without parole. "That was not a foregone conclusion," he said. "Here we have the Supreme Court of South Carolina saying the state will not impose life without parole on a juvenile without looking at the totality of the person in this situation."
I concur with the view of Professor Miller that this new South Carolina Supreme Court ruling in Aiken v. Byars, No. 27465 (S.C. Nov. 12, 2014) (available here), is a big win for juvenile justice advocates. Here are a few passages from the majority opinion that lead me to this view:
We conclude Miller creates a new, substantive rule and should therefore apply retroactively. The rule plainly excludes a certain class of defendants — juveniles — from specific punishment — life without parole absent individualized considerations of youth. Failing to apply the Miller rule retroactively risks subjecting defendants to a legally invalid punishment....
We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it. Indeed, the Court noted that because its holding was sufficient to decide the cases before it, consideration of the defendants' alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles was unnecessary. Id. at 2469. However, we must give effect to the proportionality rationale integral to Miller's holding — youth has constitutional significance. As such, it must be afforded adequate weight in sentencing.
Thus, we profoundly disagree with the position advanced by the respondents and the dissent that the import of the Miller decision has no application in South Carolina. Miller is clear that it is the failure of a sentencing court to consider the hallmark features of youth prior to sentencing that offends the Constitution. Contrary to the dissent's interpretation, Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered.
As evidenced by the record, although some of the hearings touch on the issues of youth, none of them approach the sort of hearing envisioned by Miller where the factors of youth are carefully and thoughtfully considered. Many of the attorneys mention age as nothing more than a chronological fact in a vague plea for mercy. Miller holds the Constitution requires more.
Federal judge wonders if marijuana sentencing should be impacted by state reforms
As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:
U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."
"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.
Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.
"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?
"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.
November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
"A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle"
The title of this post is the title of this notable and timely new piece authored by Avi Kupfer and available via SSRN. Here is the abstract:
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime.
This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.
Tuesday, November 11, 2014
Legislation to get Ohio back on track with lethal injections being fast-tracked
As reported in this local article, headlined "Death-penalty reform bill would protect execution drug makers, physicians who testify," it appears that the state legislative process is moving forward to enact new regulations to help Ohio get back into the business of executions. Here are the details (with my emphasis added at the end):
Makers of Ohio's lethal-injection drugs would be kept anonymous, and physicians who testify about the state's execution method couldn't have their medical license revoked, under House legislation introduced Monday. Attorney General Mike DeWine has said that lawmakers need to pass the reforms if Ohio is to resume executions next year, once a court-ordered moratorium ends.
Ohio, along with many other states, has been struggling to settle on an execution method, as many large pharmaceutical companies have refused to continue selling drugs used for lethal injection. The state's current two-drug cocktail is being challenged in court and has been used in controversial executions in Ohio and Arizona.
House Bill 663 would keep secret the identities of compounding pharmacies, small-scale drug manufacturers that create individual doses of lethal-injection drugs on demand. The proposed change is a sign that state officials could turn to compounding pharmacies for lethal-injection drugs that courts have upheld but that larger companies have stopped selling, such as pentobarbital. Rep. Jim Buchy, a Greenville Republican co-sponsoring the bill, said the measure would protect compounding pharmacies from lawsuits.
Another proposed change in the bill would prevent the Ohio State Medical Association from revoking or suspending the license of any physician who provides expert testimony on the state's death penalty. Such immunity is needed, supporters say, because the state is worried that doctors will refuse to testify in defense of Ohio's lethal-injection protocol for fear that they'll run afoul of medical ethics....
House Speaker Bill Batchelder, a Medina Republican, and Senate President Keith Faber, a Celina Republican, each said last week they plan to pass the legislation. "That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution," Batchelder said.
I have a inkling that Speaker Batchelder's comments emphasized above may have been taken a little out of context, as the quote makes it seem he considers it is essential to fix quickly Ohio's machinery of death so that prisoners do not die on their own before being able to be killed by the state.
New York City mayor announces new policy concerning marijuana enforcement
As reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....
As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...
At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.
Cross-posted at Marijuana Law, Policy & Reform
Monday, November 10, 2014
"Why Are There Up to 120,000 Innocent People in US Prisons?"
The provocative question in the title of this post is the provocative headline of this lengthy article from VICE News. Here are excerpts:
Guilty pleas and false confessions by the innocent are counterintuitive phenomena, says Rebecca Brown, director of state policy at the non-profit Innocence Project. But of the 321 DNA exonerations that have occurred in the United States, 30 have involved people who originally pled guilty to crimes they didn't commit. It's hard to accept that people who are innocent would knowingly incriminate themselves, but it happens frequently.
"Our cases are almost exclusively rapes and murders — very, very serious crimes — and even then, innocent people are pleading guilty," Brown says. "Now spread that out across the entire system to include lower-level offenses, the vast majority of which are pled out, and the implications are clear."
According to the Innocence Project's estimates, between 2.3 percent and 5 percent of all US prisoners are innocent. The American prison population numbers about 2.4 million. Using those numbers, as many as 120,000 innocent people could currently be in prison...
"The system isn't geared to discover innocence or guilt — it's geared to get people through the system as quickly and efficiently as possible," says John Pollok, a defense lawyer who has defended clients ranging from the mayor of Waterbury, Connecticut to members of the Gambino crime family. "What it comes down to for a defense lawyer is really to try and minimize harm."
Overwhelmingly, minimizing harm means taking a deal instead of taking your chances at trial. And just as false confessions lead to false convictions, coercive plea bargains are also responsible for sending thousands of innocent people to prison. "Everybody swallows the lie because they want to believe that the system works," Pollok says. "The short of it is, each component of the system, from lawyers to judges to the way we charge people, is broken."
As federal judge Jed Rakoff wrote recently in the New York Review of Books, "The Supreme Court's suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: It is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."
Rakoff tells me there are too many variables involved to pin down precisely how many innocent people are in prison, but he says criminologists peg the rate at which innocent people confess to crimes during plea bargains between 2 percent and 8 percent. A spread that wide rightfully raises suspicions, and so Rakoff chooses to instead use an extremely conservative estimate of 1 percent. Even then, that puts up to 20,000 people behind bars for crimes they did not commit due to pressure to accept pleas. "We know for a fact that there are innocent people taking pleas and going to prison," Rakoff says. "That's not conjecture."
No one can be forced to accept a plea bargain; the right to a trial is guaranteed by the US Constitution. However, a pernicious phenomenon called the "trial penalty" dissuades many defendants from exercising it. The federal conviction rate is an astonishing 97 percent, and studies have shown that defendants who refuse plea bargains are put behind bars for roughly nine times as long as those who take deals. (Twelve of the inmates exonerated by the Innocence Project were threatened with the death penalty before deciding to plead guilty.) As one former US Attorney told Human Rights Watch (HRW) last year, "If you reject the plea, we'll throw everything at you. We won't think about what is a 'just' sentence."
When Sandra Avery was caught with 50 grams of crack cocaine, prosecutors offered her a 10-year sentence if she agreed to plead guilty. Avery decided to take her chances at trial, and was promptly convicted, after which prosecutors "threw everything" at her by invoking Avery's three previous convictions for possession. The total value of the drugs Avery had been caught with in the previous three cases amounted to less than $100, but because Avery had three priors, she was sentenced to life in prison. There is no parole in the federal system. Avery will die behind bars.
Darlene Eckles, a nursing assistant with a clean record, agreed to let her brother stay with her after he got out of prison. She protested when he began dealing crack from her home, and finally kicked him out six months later. When the brother was later arrested on federal drug trafficking charges, Eckles got picked up too. Like Avery, Eckles refused to plead guilty, and went to trial. Although the jury convicted her on lesser charges that did not carry a mandatory minimum, prosecutors argued Eckles was every bit as responsible as her brother. The judge sentenced her to 19 years and seven months in prison. Her brother, who pled guilty, got 11 years and eight months.
Weldon Angelos sold $350 worth of marijuana to a confidential informant, who claimed that the 22-year-old Angelos was armed with a gun during two of the transactions. After Angelos was arrested, police found 3 pounds of pot and three guns during a search of his apartment. There was no evidence the guns had ever been fired or used to threaten someone else. Prosecutors offered Angelos 10 years for the weed, and five years for the guns. Angelos declined, opting for a trial. Prosecutors responded by filing a superseding indictment that stacked five new charges on top of the existing ones. Angelos was convicted and sentenced to 55 years in federal prison. He will be nearly 80 years old when he is released.
Federal prosecutors righteously undo convictions based on FBI agent's misdeeds
Regularly readers know I am quick to criticize federal prosecutors in this space when I am troubled by decision that seem driven more by a desire to win convictions and secure long sentences than by a commitment to do justice. Given that reality, I nw want to be among the first to praise federal prosecutors for their response to evidence than an FBI agent in the DC area tampered with evidence in a number of serious prosecutions. This Washington Post piece, headlined "More drug defendants cleared of charges because of investigation into FBI agent," provides details on a story that showcases the virtuousness of federal prosecutors:
Thirteen defendants charged with or convicted of distributing large amounts of heroin in the District had their cases dismissed Friday because prosecution had been tainted by an FBI agent who is accused of tampering with evidence linked to the cases, including drugs and guns.
Seven of the defendants had pleaded guilty in the drug conspiracy and four of them were serving prison sentences of between two and seven years. But in one instant, all were unburdened by criminal charges or convictions, and those serving time had their sentences vacated. As soon as the hearing in federal court adjourned, the former defendants rushed from the box normally reserved for jurors, with one jubilantly saying, “Let me get out of here before [the judge] changes his mind.”
Friday’s ruling in U.S. District Court follows similar action Thursday, when another judge threw out charges involving 10 people convicted in a separate drug conspiracy involving the sale of heroin and cocaine. Charges in other cases could be dropped in the near future.
Prosecutors had recommended dropping the charges amid the investigation of Matthew Lowry, 33, an FBI agent assigned to the Washington field office who worked with police on crime that spilled over from the District into Maryland and Virginia. Lowry has been suspended but not charged. The investigation is being led by the Justice Department’s inspector general, and court documents link the dismissals to the probe involving Lowry.
Authorities have said little about the investigation, but court documents filed as part of the release of suspects say that Lowery is accused of tampering with drug and gun evidence. Officials with knowledge of the investigation have said the agent allegedly took heroin and used it himself. Other officials said Lowry was found in the last week of September slumped over the wheel of an unmarked FBI car near the Navy Yard, along with two drug evidence bags, heroin and two guns.
The fallout has been swift. Within days, prosecutors identified at least three drug cases and started to send defendants home from jail and prison to await further action. Prosecutors began dismissing cases outright Thursday. In all, 23 of 28 defendants in two drug cases have had their charges dismissed.
“We do not lightly dismiss these cases, particularly when the defendants face the serious drug charges at issue here,” U.S. Attorney Ronald C. Machen Jr. said in a statement. But, he added, “The credibility of the system is paramount and more important than any individual prosecution. That’s why we are carrying out a case-by-case, defendant-by-defendant review to determine which cases should go forward.
"We are carefully examining the role that the FBI agent played in each investigation to assess whether the case can proceed. And moving forward, be assured we will not be dissuaded from aggressively investigating and prosecuting narcotics cases to protect the residents of the District of Columbia,” the prosecutor said....
One of the defendants freed, 59-year-old Brandon Beale, went straight from the courtroom to the Pretrial Services Agency so he could turn in his ankle bracelet and shed the restrictions of home detention, said his attorney, Greg English. English said Beale, who was jailed for nearly a year, planned to fight the charges on the grounds that he was merely a drug user, not a dealer. Now, English said, there will be no reason to do that.
“This turn of events is absolutely extraordinary for an agent to commit misconduct like this. It goes to the basic integrity of the system,” English said. “But having said that, I think the U.S. Attorney’s Office did the right thing today and dismissed it. . . . They were completely ethical and upfront in their conduct in this case.” English said it was technically possible for prosecutors to bring the charges against Beale and others again, but he doubted they would do so.
In addition to being eager to praise federal prosecutors for their swift and aggressive response to learning that an FBI agent has gone rogue, I am also eager to know if anyone (e.g., Bill Otis) might be incline to criticize the federal prosecutors for moving to vacate a bunch of convictions rather than to seeking to contend that any evidence problems created by the rogue agent produced on harmless errors.
Sunday, November 09, 2014
Minnesota judges say we must admit "we have a problem with race" in the criminal justice system
Kevin Burke, a Minnesota county district judge, has authored this provocative new commentary which was signed on to by a number of fellow judges. The piece is headlined "On race and justice system, we're still in denial," and here are excerpts:
Repeatedly, we have been confronted with compelling evidence that our community has a serious problem with racial disparity in its justice system. Repeatedly, we have either said, “We can stop,” or we get defensive and attack the messenger. The time has come for us to change our response.
The recent report by the American Civil Liberties Union of Minnesota (ACLU) on the racial disparities of arrests comes as no particular surprise (“ACLU: Blacks arrested more for minor crimes,” Oct. 29). Sure, you could write off the ACLU as some leftist organization — except that its report is based on hard data. The ACLU’s data and its analysis replicate numerous studies dating back decades about the problem of racial disparity in the justice system in our community....
[I]n 2007, the Minneapolis-based Council on Crime on Justice issued a report that found that “[t]he racial disparity in Minnesota’s justice system is exceptionally high compared to other states. From arrest to imprisonment, the disparity is over twice the national average.” Since 2000, the report said, the Council on Crime and Justice “has undertaken seventeen separate studies in a comprehensive effort to understand ‘why’ such a large disparity exists here, in Minnesota.”...
We need to accept we have a problem. All of us have a right to be safe, but protecting the public and being racially fair are not mutually exclusive. The ACLU report is interesting, in part, because it is not focused on “serious” or “violent” crime. There is no legitimate reason why there is a vastly disproportionate arrest rate for young black people for possession of small amounts of marijuana or for loitering.
The justice system desperately needs the trust of the public. Community policing is premised upon community support. But before you conclude that this is a problem with the Minneapolis police — stop. All of the police, prosecutors, defenders, corrections officials and the community at large own a piece of the mess. And yes, so do the elected officials — including judges. Every one of us in the justice system bears responsibility for this problem....
There is a connection between racial disparity in the justice system and what is happening in our community. Child protection failures, racial disparity in low-level offenses, achievement gaps in school, and yes, even violent crime and gang problems are all related. The beginning of an end to these issues starts with a collective admission that we have a problem with race.
The solutions to our problem of racial disparity in the justice system may be as intractable as our failure to acknowledge the existence of the problem, but we have no choice other than to act. At a minimum, we need to acknowledge the cumulative nature of racial disparities. Racial disparity often builds at each stage of the justice continuum, from arrest through release from prison. And even then it does not stop. Employment opportunities for ex-offenders are limited. Hennepin County has a history of very good dialogue among the justice system participants, but in order to combat racial disparity, everyone needs to commit to a systematic approach. Without a systemic approach to the problem, gains in one area may be offset by reversals in another....
Given the persistence of the problem of racial disparity in the justice system, however, a very good case can be made that reasoned experiments to find solutions are a better alternative than continually repeating what we are presently doing — and hoping for a different result.
Friday, November 07, 2014
Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"
Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:
The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent. The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.
Fish are funny. First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even. The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices. And this wasn’t all the Scalia show. Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.
But overcriminalization is not. Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution. Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it. At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.” (Again, to great laughter.) In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion. Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause. Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.
And neither is severe sentencing. Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction. A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available. The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.” He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.
Overcriminalization exacts real hams. I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context). Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement. This is what so many of the Justices were reacting to during the argument. But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law. The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.
Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner. According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail. The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.