Sentencing Law and Policy

"[W]hen viewed through the lens of organizational science, courts boggle the mind."

The title of this post is a sentence from this interesting new commentary by Babak Armajani and Judge Kevin Burke, which is headlined "Creating the Courts Americans Want: The public is dissatisfied with our courts; What the judicial system needs is a culture of performance-based innovation." (Hat tip: How Appealing.)  Here is what follows the insight in the title of this post:

External sources (the voters or elected officials) select the "partners of the firm" (the judges) with little or no input from the court or even any understanding of what needs a court may have.  Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge.  The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.

There are some bright spots on the court landscape.  Arizona, Colorado, Maryland and Nebraska are among states giving a lot of attention to how to create stronger court organizations and, more important, conditions that foster change and innovation.  The courts in Maryland, for example, have partnered for several years with Johns Hopkins University's Institute for Policy Studies to enhance the courts' leadership capabilities.

Leadership is especially important when it comes to creating a culture of performance in the courts.  As in other organizational settings, meaningful change is initiated not by using technology to pave the cow paths of past practice but by first defining the outcomes the courts seek and then getting all involved to focus on improving those outcomes.

One outcome that most courts have the capacity to measure is the speed or timeliness of their decisions.  Many courts, among them those in Maryland and Minnesota, are working to improve this crucial measure.

Another important measure is the "customer" experience.  Was the litigant heard?  Did the litigant understand the reasoning and terms of a ruling?  The response to questions such as these on simple surveys can provide valuable information about the customer experience.  A decade ago, no court focused on these types of performance measures. Today, the court systems in Alaska, Colorado and Washington State have initiatives focused on measuring and improving the litigant experience, and many local courts have moved in a similar direction.

Where there is measurement, change usually follows. In places where such measures are used as tools for learning how to improve rather than to assign credit or blame, we are seeing the beginnings of dramatic changes in the culture and operations of our courts.

This article is not focused only on sentencing decision-making or criminal case adjudication.  But concerns about the timeliness of decisions are especially acute in death penalty litigation, and I surmise many sentencing "customers" (prosecutors and defendants and their lawyers) are rarely fully satisfied with their court experiences. Thus, I think the themes and ideas of this article should be of special interest to sentencing fans.

Notable Miller-aftermath news from three states

Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:

• From Alabama here, "Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act"

• From Louisiana here, "Juveniles serving life sentences could become parole eligible under bill headed to Louisiana Senate"

• From Missouri here, "Missouri sentencing law for juveniles draws criticism"

In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.

Jodi Arias now pleading for a life sentence before sentencing jury

As reported in this new USA Today piece, "Jodi Arias, who said after her murder conviction she would prefer death to life imprisonment, stood before the jury Tuesday and pleaded for her life instead, asking them not to punish her family for her actions."  Here is more on today's action in a high-profile capital case:

Speaking as the only witness on her behalf in the penalty phase of her trial, she also referred to the family of her victim, onetime lover Travis Alexander, saying, "I never meant to cause them pain."...

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Alexander's brother and sister as they described how his killing has torn their lives apart.

Arias acknowledged that her plea for life was a reversal of remarks she made to a TV reporter shortly after her conviction, when she said she preferred the death penalty. "Each time I said that, I meant it, but I lacked perspective," the former waitress said. "Until very recently, I could not imagine standing before you and asking you to give me life."

She changed her mind, Arias said, to avoid bringing more pain to members of her family, who were in the courtroom. "I cannot in good conscience ask you to sentence me to death, because of them," Arias said, pointing to her family. "I think death is tantamount to suicide. Either way, I will spend the rest of my life in prison. It will either be shortened, or not. If it is shortened, the people who will be hurt is my family. I am asking, please, please, don't do that to them."

After she finished speaking, the judge told jurors they can consider a handful of factors when deciding what sentence to recommend, including the fact that Arias has no previous criminal record. They also can weigh defense assertions that Arias is a good friend and a talented artist. Arias, wearing glasses, looked at the jury from time to time, but largely read from notes on a sheaf of papers she clutched in her hand.... At one point, she held up a white T-shirt with the word "survivor" written across it, telling the jurors that she would sell the clothing and donate all proceeds to victims of domestic abuse. She also said she would sell her hair to charity while in prison, and had already done so three times while in jail.

At one point in her remarks, Arias said she regretted how her trial, which drew national attention, had become a spectacle. She said she especially regretted testifying to the "darker elements" of her relationship with Alexander and how the "graphic, mortifying, horrific details" got into the public arena.

She said she had tried, instead, to avoid a trial. "I got on TV and lied about what I did and lied about the nature of my relationship with Travis," she said. "It has never been my intention to malign his name or character. In fact, it was a goal of mine to protect his reputation."

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?
• Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
• Notable developments in penalty phase of Jodi Arias' capital trial

Notable developments in penalty phase of Jodi Arias' capital trial

As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?
• Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

"How to Legalize Pot"

The title of this post is the headline of this notable new op-ed in today's New York Times authored by Bill Keller.  Here are some excerpts from an interesting read:

The marijuana debate has entered a new stage.  Today the most interesting and important question is no longer whether marijuana will be legalized — eventually, bit by bit, it will be — but how....

A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use.  (Twelve others, including New York, are considering it.)   But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.

The biggest shadow hanging over this project is the Department of Justice.  Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despite evidence indicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite new moves toward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon....  But federal authorities have always left a lot of room for local discretion on marijuana enforcement.  They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines.  Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.

One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners.  There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team.  “And the vast majority of sales go to people who are daily or near-daily consumers.”

What [UCLA Professor Mark] Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant.  This could be done by limiting the size of licensed purveyors.  It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.

If you read the proposal Kleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business.  Among the things on the to-do list: certifying labs to test for potency and contamination.  (Pot can contain, among other nasty things, pesticides, molds and salmonella.)  Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply.  Establishing limits on advertising, because you don’t want allowing to become promoting....

And then there is the issue of drugged driving.  Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired.  In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer.  (Hands up if you want Harold and Kumar driving your taxi.  Or piloting your airplane.)  On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.

SCOTUS unanimously reverses habeas win for defendant based on state elimination of "diminished capacity" defense

Only a matter of weeks after it was argued, the Supreme Court this morning unanimously decided that the Sixth Circuit got a habeas issue wrong in Metrish v. Lancaster, No. 12-547 (S. Ct. May 20, 2013) (available here). Here is the start of the SCOTUS opinion, per Justice Ginsburg:

Burt Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense.  At the time the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized “diminished capacity” as a defense negating the mens rea element of first-degree murder.  By the time of Lancaster’s trial and conviction, however, the Michigan Supreme Court in People v. Carpenter, 464 Mich. 223, 627 N.W. 2d 276 (2001), had rejected the defense.  Lancaster asserts that retroactive application of the Michigan Supreme Court’s decision in Carpenter denied him due process of law.  On habeas review, a federal court must assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).   Under that standard, Lancaster may gain relief only if the state-court decision he assails “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28 U.S.C. § 2254(d)(1).  We hold that Lancaster’s petition does not meet AEDPA’s requirement and that the United States Court of Appeals for the Sixth Circuit erred in granting him federal habeas relief.

Absent something remarkable in the full opinion, I suspect it may prove to be more interesting (or at least more fun) to try to make jokes about the defendant's name in this case rather than to debate the ruling's enduring significance.

Lancaster is the only criminal justice ruling from the Supreme Court today, and I surmise from SCOTUSblog that the next decision day for the Court will be next Tuesday.  I am hopeful (but not optimistic) that the long holiday weekend will give the Justices a chance to finish off at least some of the notable criminal justices cases that we argued way back in January (Alleyne and Deschamps) and February (King and Peugh).  I am also I am hopeful (and a bit more optimistic) that the long holiday weekend will give me a chance to speculate about who may be authoring these opinions and why the are taking so long.

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
• "Crackheaded Ruling by Sixth Circuit"

Is OJ providing a high-profile test case for the application of Lafler and Frye?

I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences.  But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:

O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.

Mr. Simpson is seeking a ruling overturning his conviction of armed robbery and kidnapping of sports memorabilia dealers in 2007. He says his counsel was inadequate and that his lawyer misled co-counsel. "I had never sold any of my personal memorabilia, ever," he testified Wednesday, dressed in prison blues.

Squabbles between lawyers and their clients and co-counsels are not uncommon, says Robert Pugsley, a professor at Southwestern Law School in Los Angeles. “Most clients in this situation are so poor or low on the economic scale that their bad lawyering doesn’t get much attention, and so the issue remains largely unnoticed,” he adds. “Whether Simpson prevails or not, this proceeding has a great chance to put the spotlight on this widespread problem.”...

Simpson’s claim of ineffective assistance of counsel “will predictably devolve into a ‘he said, he said,’ conflicting, fact-based narrative by Simpson and his former attorney,” says Professor Pugsley. Simpson's counsel in the robbery case that went to trial in 2008, Yale Galanter, has refused to comment publicly but is scheduled to testify Friday.

Potentially working in Simpson’s favor is a US Supreme Court ruling last session (Missouri v. Frye) that held that the guarantee of “effective assistance of counsel” extends to the consideration and negotiation of pleas – Simpson’s key complaint.

Co-counsel in the 2008 trial, Gabriel Grasso, said on the stand this week that while Mr. Galanter told him he'd talk with Simpson about a proposed plea deal, Galanter never told Mr. Grasso why he rejected it. Grasso said he didn't know if Simpson was even told.

“O.J. might have the good luck to rely on the Supreme Court’s decision last term in Missouri v. Frye. Timing is everything,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles....

Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal....

The appeal is taking place in Las Vegas, and this is Simpson's last chance under Nevada law to prove that he was wrongly convicted. A federal court appeal is still possible.

However, the standard of proof is so high that Simpson is unlikely to meet it, even if the judge believes everything he says, says Norman Garland, a professor at Southwestern Law School. “Simpson has to prove not only that the advice given to him was deficient, but that he was prejudiced by that deficiency,” says Professor Garland. “The requirements for demonstrating ineffective assistance of counsel are demanding, and the defendant must overcome a strong presumption that counsel’s performance was within the range of competent representation in order to prevail.”

A few recent related posts on Lafler and Frye:

• "Two Rights to Counsel"
• A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
• A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining

Legislative and executive officials revving up Florida's machinery of death

As reported in this lengthy new local article, "Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades."   Here is more about his actions and recent similar activity within his state's legislature:

Scott and his chief legal adviser say they are doing nothing unusual.  But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty. “In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “If appears that every 10 days, Gov. Scott is signing a death warrant.”

Scott recently signed three death warrants in succession, for condemned murderers Elmer Leon Carroll, William Van Poyck and Marshall Lee Gore.  All three have been on Death Row for longer than 20 years.  Their executions, set over the next six weeks, will keep the death chamber at Florida State Prison in Starke unusually busy.  Two other recent death warrants have been blocked in federal court.

Scott had signed a total of six death warrants before the recent burst. “I go through them when people have exhausted their appeals and they’re finished with the clemency process,” Scott said. “Then I continue to move the process along.”...

Scott’s spurt of death warrant signings also parallels the Legislature’s recent passage of a bill aimed at speeding up the death penalty appeals process.  Dubbed the Timely Justice Act by legislators, the bill (HB 7083) passed both chambers by wide margins.  It has not yet been sent to Scott for action.  “We’ll review it and see what it does,” Scott said of the bill.  One provision of the bill would require the governor to sign a death warrant within 30 days of a Death Row inmate’s clemency review, a standard step in all death penalty cases.

Some legal experts have raised concerns that the bill could increase the possibility that an innocent person could be put to death.  Former state Supreme Court Justice Raoul Cantero recently co-authored an opinion column in which he said the Timely Justice Act should be viewed in a broader framework of Florida’s death penalty system, “to minimize the risk that Florida might execute innocent people or others who shouldn’t be subject to the death penalty.”....

Florida is one of 33 states that has the death penalty, and it has 405 inmates on Death Row, more than any other state except California.  The state has executed 75 people since 1976, when capital punishment was re-instituted after a long absence.

Lots of thoughts on how to save more innocent lives on highways

The Room for Debate on-line section of the New York Times has this new set of pieces discussing drunk driving and the law's responses thereto.  Here is the section's set up:

This week the National Transportation Safety Board recommended lowering the blood alcohol limit from 0.08 percent — the measurement now for 13 years — to 0.05 percent.

Is decreasing this number the best way to minimize traffic fatalities?

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

• "Follow Up on a Life-Saving Trend" by Deborah A. P. Hersman, National Transportation Safety Board

• "Tipsy Driving Is Dangerous, Too" by Barron H. Lerner, author, “One for the Road"

• "Let’s Not Stigmatize Innocent Drivers" by Gary Biller, National Motorists Association

• "Lower Levels Mean Fewer Fatalities" by Kathryn Stewart, Safety and Policy Analysis International

• "Other Measures Are Just as Important" by Jan Withers, Mothers Against Drunk Driving

A (dynamically?) dormant death penalty in Dorothy's domicile

The playfully alliterative headline for this post is spurred by this lengthy and effective local piece headlined "The Kansas death penalty has cobwebs." Here are excerpts:

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.   It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.  “When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course.  But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.  “Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.  “So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.  “Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

But death penalty supporters say the state’s ultimate sanction shouldn’t be judged solely by the number of times it’s actually used.  The mere threat of death — or decades locked in isolation, waiting for death — plays an important role, they say, in the state’s justice system.

Kansas lawmakers reinstated the state’s death penalty in 1994.  Since then, 13 men have been condemned to death for murder.  All remain alive.  Only nine sit on the state’s death row, according to the Kansas Department of Corrections’ website.  The others’ sentences were reduced after appeals and plea agreements, or have been vacated pending a new trial.

Since 1976, when the U.S. Supreme Court validated rewritten capital punishment laws, only two states with death penalty statutes — Kansas and New Hampshire — have not executed a single inmate.

The long gap between capital crime and capital punishment in Kansas is the result of several interlocking factors, experts say.  The state’s death penalty law is narrow, providing a way for even the most brutal killers to escape the punishment.  Some prosecutors use the death penalty more as a negotiating tool than a criminal sanction, and some politicians remain ambivalent about executions, as do many residents in the state.

And the courts play a critical role.  All death sentences in Kansas are automatically reviewed by the state’s Supreme Court.  It’s uniquely allowed to “scour the record” for trial and sentencing errors in capital cases, even those not raised by defense lawyers.  That further raises the chances for delays....

This fall, the U.S. Supreme Court will consider Kansas death row inmate Scott Cheever’s case — he claims his Fifth Amendment protection against self-incrimination was violated during his trial and sentencing for killing a sheriff....

In 2003, a legislative audit examined the state’s death penalty expenses in the previous decade.  Kansas, the audit found, had spent or would spend almost $20 million on its 14 death penalty cases, including cases where the death penalty was sought but not granted. By contrast, taxpayers spent $6.3 million on eight cases where the prosecutors did not ask for death in a murder case.

The most expensive death penalty case involved Johnson County’s John E. Robinson Sr., convicted on two capital murder counts.  Ten years ago, the state said Robinson’s case would cost taxpayers $2.4 million, a bill that has continued to grow.  “Nobody in his right mind defends the death penalty because it saves money, anywhere, anytime, under any circumstances,” O’Brien said.  “Because it doesn’t.”...

Gov. Sam Brownback said last week that his view on capital punishment has changed in recent years, putting him to the left of most in his Republican Party.  He now believes it should be reserved for inmates who pose a future threat to society, using Osama bin Laden as an example. “You’re always looking to protect life,” he said.  “That’s a very narrow definition of the use of the death penalty.”

Brownback’s views on capital punishment in Kansas, though, may be less important than they appear.  Even if he is re-elected in 2014, it’s unlikely he would still be in office when any death row clemency requests might be filed.  But they do suggest many Kansans, even some conservatives, remain uncomfortable with the ultimate sanction....

Some prosecutors and supporters, though, say keeping the death penalty on the Kansas books remains important.  Studies show the death penalty is still a deterrent, Heritage’s Muhlhausen said, although the effect drops in states that don’t actually carry it out.

Other experts dispute his conclusion. The Kansas murder rate is 3.5 per 100,000 people, according to the Death Penalty Information Center.  In Missouri, it’s 7 murders per 100,000.  Both have the death penalty, but only Missouri has carried it out in recent years. Iowa has no death penalty.  Its murder rate is 1.3 per 100,000 people.

But even the threat of capital punishment can focus a defendant’s attention on plea agreements that spare victims’ families from long trials, some lawyers say.  In most agreements, almost all future appeals are waived, ending the trauma of court appearances and media stories about the crime.  Additionally, death penalty defendants have more to worry about than death.

Paul Cramm represented Edwin Hall, now serving a sentence of life without parole after pleading guilty to murdering Kelsey Smith. Clients, Cramm said, are often as worried about the conditions of death row as they are about the execution chamber itself, which encourages plea deals. Death row inmates are kept in El Dorado, Kan., in isolation from almost all other prisoners. Most defendants realize “the likelihood of an acquittal or a finding of not guilty is not real high,” Cramm said. “The likelihood of being executed in your lifetime is not real high. So I guess what we’re negotiating for is, what sort of life do you want to have while you’re incarcerated?”...

Asked if the gap between sentence and execution in Kansas is too long, Brownback hesitated for several seconds. “I’ve been at the chambers in Lansing, where the death penalty would have to be administered,” he said. “That’s a very sobering place to see.

“But I think it’s kind of actually worked for the state,” he added. “Most Kansans would look at it as wanting this to be very, very, very sparingly used.”

"Two Rights to Counsel"

The title of this post is the title of this notable new article by Josh Bowers now available via SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel.  The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. 

To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye.  An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law.  Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.”  In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle.

It does not follow, however, that the Court’s two-track jurisprudential approach is misguided.  Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).  As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.”  The Collapse of American Criminal Justice 184 (2011).  He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.

When can and how should sex offenders be responsible for harming property values?

The provocative question in the title of this post is prompted by this recent local article from Pennsylvania headlined "Judge: Sex offender not required to buy victim's property."   Here are excerpts:

A Lehigh County couple who say a neighbor who admitted molesting their child should be forced to buy their property apparently won't get their wish.

County Judge Michele A. Varricchio has shot down the Upper Milford Township couple's unusual request that sex offender Oliver Larry Beck be required to purchase their $235,000 property, according to court records. Varricchio issued the order last week, explaining that forcing a sex offender to buy the home of a victim living in his neighborhood would "open the proverbial floodgates."

"This court finds it against public policy to require a defendant to purchase a plaintiff's property in a nuisance case," Varricchio wrote. The judge added that ordering the home purchase would "impose almost limitless liability on a property owner by every other neighbor who claims difficulty selling his or her property, regardless of the proximity to the alleged nuisance."

Varricchio was ruling on preliminary objections in a lawsuit filed against Beck, along with Beck's wife and mother. The couple whose daughter was molested by Beck filed the suit in December asking a judge to order Beck to buy their home and pay for the child's pain and suffering and for other damages. They claim the property is virtually unmarketable....

They still are eligible to seek damages for their child's suffering and for the loss in value of their property, although Varricchio said they are not entitled to be paid for the total value of the property. Varricchio's order says that that the victim's family should amend the lawsuit to provide details and proof of the loss in the value of their property.

"There is no doubt that the parents have a right to enjoy their own residence and property without the invasion and interference caused by [Beck]," Varricchio wrote. "Property rights are protected by the United States Constitution, but the equal protection clause affords both plaintiffs and defendants that protection."...

There is some scientific evidence that sex offenders lower property values. Two economics professors at Columbia Business School in 2008 studied the effect, finding that the value of homes within one-tenth of a mile of a sex offender dropped by an average of 4 percent.

The suit accuses Beck of sexual assault, infliction of emotional distress, fraud and negligence, among other claims. It also names as defendants Beck's wife and mother, claiming both knew or should have known of Beck's attraction to young children.

Beck, now 65, pleaded guilty in 2011 to indecent assault of a child under 13 and served time in prison. He is out of prison, but under Megan's Law must register as a sex offender for the rest of his life. Investigators said that in February 2011, Beck lured the victim, then 7 years old, into his house by saying he wanted to show her a bear's head mounted in his basement. After telling the girl to feel the bear, Beck told her to take off her shirt and pants and then assaulted her, according to court records.

Beck's attorney, Robert J. Magee of Allentown, wrote in a court brief that the demand for the home purchase was "not appropriate or authorized under a legal or equitable theory." He added that the victim's family is still able to use and enjoy the property. He added, "This is just a type of injury that allows for no recourse, an injury without a remedy."

Varricchio also dismissed the couple's request that Beck pay their attorneys' fees. In addition, she dismissed a claim against Beck's wife that she be held partly liable for their property value loss.

"Capital Prejudice"

The title of this post is the title of this new article on SSRN authored by J. Richard Broughton.  Here is the abstract:

This paper, published as part of a symposium devoted to cultural competency and the death penalty, considers the law of prejudice pursuant to Strickland v. Washington, with a focus on its application in capital cases.  It offers a rarity in the academic literature on Strickland’s prejudice prong: a modest defense of it.  Although this paper concedes the plausibility of an alternative to the existing standard, it argues that some form of harm analysis ought to remain part of basic ineffective assistance jurisprudence and that even the best articulated alternative suffers from some deficiencies that render the existing standard equally desirable.  Indeed, this paper acknowledges that the existing prejudice standard is unlikely to be replaced and therefore must be properly understood and applied. 

The paper gives special attention to the standard as applied in capital cases involving ineffective assistance claims after Strickland, as those cases have tended to dominate the Court’s attention in this area of constitutional criminal procedure.  It then argues that the prejudice standard must account not simply for the strength of the state’s case but also, in the special context of a Strickland challenge arising from the capital sentencing phase, for the unique capital sentencing procedures in place in the relevant jurisdiction and be understood as intersecting with the Eighth Amendment law of aggravation and mitigation law as applied during the jury’s selection decision.

The Court’s opinions in Terry Williams, Wiggins, and Rompilla, in particular, all represented an effort to give greater bite to the Strickland standard and demonstrate that the state need not necessarily prevail on ineffective assistance claims.  But, unlike others in the academic community, I argue that the Court wrongly decided each of those cases. It gave too much attention to the deficiency prong and inadequate attention to proper application of the prejudice prong, particularly in light of the nature of the crimes, the strength of aggravation, and the highly deferential portions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) that generally govern claims on federal habeas review.  The Court, however, has moved in a corrective direction, especially after its recent decision in Cullen v. Pinholster, which will likely have significant consequences for the litigation of ineffective assistance claims on collateral review.

Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

As detailed in this new AP report, the "same jury that convicted Jodi Arias of murder one week ago took about three hours Wednesday to determine that the former waitress is eligible for the death penalty in the stabbing and shooting death of her one-time lover in his bathroom five years ago." Here is more about today's jury finding and what now follows in this high-profile capital case:

The decision came after a day of testimony in the "aggravation" phase of the trial, during which prosecutor Juan Martinez hoped to prove the June 2008 killing was committed in an especially cruel and heinous manner.

Family members of victim Travis Alexander sobbed in the front row as Martinez took the jury through the killing one more time. He described how blood gushed from Alexander's chest, hands and throat as the motivational speaker and businessman stood at the sink in his master bathroom and looked into the mirror with Arias behind him....

The trial now moves into the final phase, in which prosecutors will call Alexander's family and other witnesses in an effort to convince the panel Arias should face the ultimate punishment. Arias' attorneys also will call witnesses, likely members of her family, in an attempt to gain sympathy from jurors so they give her life in prison. That phase is scheduled to start Thursday morning.

The aggravation phase played out in quick fashion, with only one prosecution witness and none for the defense. The most dramatic moments occurred when Martinez displayed photos of the bloody crime scene for the jury and paused in silence for two minutes to describe how long he said it took for Alexander to die at Arias' hands on June 4, 2008....

Martinez told jurors Wednesday that Alexander "suffered immensely" at Arias' hands. "She made sure she killed him by stabbing him over and over and over again," he said.

The defense didn't have much of a case given how many times Alexander was stabbed, the defensive wounds on his hands, the length of the attack, and the sheer amount of blood found at the scene. Defense lawyers said Alexander would have had so much adrenaline rushing through his body that he might not have felt much pain.

The only witness was the medical examiner who performed the autopsy and explained to jurors how Alexander did not die calmly and fought for his life as evidenced by the numerous defensive wounds on his body.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?

US Judicial Conference seeks emergency funding due to "an unprecedented financial crisis that could seriously compromise [its] Constitutional mission"

As reported in this new post at The BLT, the US Judicial Conference yesterday "asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices."  Here is more:

In a letter sent Tuesday to the White House Office of Management and Budget [available here], the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million — $41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.

The courts want to replace part of the $350 million overall cut to the federal courts budget as part of sequestration earlier this year, according to the letter from U.S. Circuit Judge Julia Gibbons, the chair of the judicial conference, and U.S. Circuit Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts.

"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."

The federal courts, the U.S. Department of Justice and other federal agencies have been sounding the alarm about the impact of sequestration cuts since last year. Since the cuts went into effect, federal public defenders offices and clerk of courts have announced furloughs for employees.

Congress has so far restored funding cuts that affected air travel, and allowed the Justice Department to transfer funds to avoid furloughs for the prison officers, Federal Bureau of Investigation agents, prosecutors and other officials. So far, the courts have gotten no such consideration. "Unlike some executive branch entities, the judiciary has little flexibility to move funds between appropriation accounts to lessen the effect of sequestration," the letter states.

The judicial conference says $13 million of the funding would go directly to restoring public safety, because it will bring back half of the sequestration cuts for drug testing, substance abuse and mental health treatment of federal defendants and offenders. The request includes $28 million to avoid deferring for three weeks payments to private attorneys representing indigent defendants.

Recent related posts:

• Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
• Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
• "How the Sequester Threatens the U.S. Legal System"
• "Can Constitutional Rights Be Sequestered?"
• Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"
• Are sexy and jobless now the best adjectives to describe federal criminal justice in SD Ohio?

"Colorado corrections alerting judges of hundreds of sentencing flaws"

The title of this post is the headline of this Denver Post article, which gets started this way:

Corrections officials are alerting judges throughout Colorado that errors appear to have resulted in early, improper release dates from prison for hundreds of prisoners they sentenced.

The judges are reviewing the case files so they can decide which of those already released from incarceration should be returned to prison to serve out the longer sentences required by state law. Other cases involve prisoners who are on the verge of release who may now see their sentences extended.

These are the early results of an audit still underway by the Colorado Department of Corrections.  Gov. John Hickenlooper ordered the department to conduct the audit after it was disclosed that a parolee believed to have murdered corrections chief Tom Clements was released from prison early because of a clerical error.

The audit, so far, has found "serious questions" in the sentences of 349 individuals either already released from prison or scheduled for release, corrections officials said.  Of those, judges have amended sentences in 56 cases.

The errors occurred for a variety of reasons.  In some cases, judicial clerks may have given incorrect sentences to the corrections department.  In others, corrections officials may have interpreted sentences incorrectly.  A full breakdown is not yet available on how the errors occurred.

The audit still is in the preliminary stages and is not expected to be finished until July. The state has identified 8,415 individuals whose sentences need reviews, with at least 2,500 warranting a more intensive look.  About a fifth of the intensive reviews have been completed. If the current error rate continues, "serious" sentencing flaws could be detected in the cases of more than 1,000 individuals.

I guess this story brings new meaning to the label "Department of Corrections."

Judge Kopf weighs in on Rep. Sensenbrenner (and on comments to his comment)

I am pleased to see that Senior United States District Judge Richard Kopf has now discussed, through two recent posts on his blog "Hercules and The Umpire", some of the recent discussion generated by my post concerning Representative James Sensenbrenner's statement about "judge-shopping" and the need for mandatory minimum sentencing laws.  Here are the titles of the two posts by Judge Kopf, along with the heart of Judge Kopf's additional commentary in these posts:

Memo to Doug Berman: The answer is “yes.” (This is a direct answer to this post's title query: "Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping'?"):

I once had an audience with then Chairman Sensenbrenner in his Washington office. It was disconcerting for a variety of reasons.  Prime among the reasons for my disquiet was the fact that the Congressman sat very near to a portrait of himself that was so large and so lifelike that I could not figure out whether I was speaking to the portrait or the real guy. As it turned out, nothing I said to the portrait or the man made any difference.

More on Sensenbrenner:

Everyone who knows anything about the federal district courts understand that it is virtually impossible to judge-shop in the manner suggested by the Bucky Badger doppelgänger.  Everyone who knows anything about federal sentencing policy -- from the Sentencing Commission on down -- also knows that almost all mandatory minimum sentences radically distort and frustrate reasoned sentencing practices.  The current effort to address statutory minimums in Congress is really important and Doug’s effort to stimulate serious discussion on the subject was cheapened by the responses he received.

Good and smart people ought to act good and smart.  We have the Sensenbrenners of the world to provide us with the nasty and dumb.

Abortion doc cuts post-conviction deal to get formal LWOP rather than face (symbolic) death penalty

As reported in this ABC News story, "Philadelphia abortion doctor Kermit Gosnell agreed ... to serve two life sentences and waive his right to an appeal in order to avoid the possibility of being condemned to death." Here is more about the case and the deal cut:

Gosnell was convicted of first degree murder on Monday in the deaths of three babies who were born live and then killed by severing their spinal chords with scissors.

As part of the deal, Gosnell, 72, will serve two life sentences without the possibility of parole or the opportunity to appeal.  Prosecutors had sought the death penalty against Gosnell, but because of his advanced age it was deemed unlikely that he would live long enough for death penalty appeals which can last decades.

Gosnell is expected to be sentenced Wednesday.  He will also be sentenced on a conviction of involuntary manslaughter in the death of a female patient who was given a lethal dose of sedatives and pain killers in 2009.

The guilty verdicts came on Monday, the jury's 10th day of deliberations.  Gosnell was accused of performing late-term abortions on four babies who were born alive, but were then allegedly killed by Gosnell.  He was cleared in the death of one of the infants.

For two months, the jury heard often grisly testimony, including from members of Gosnell's staff.  Eight staffers have pleaded guilty to several crimes. Prosecutors said none of the staff were licensed nurses or doctors.

While there are many justifiable complaints about the high costs associated with the administration of the death penalty, this outcome provide a prime example of the cost savings that the death penalty can sometimes help generate.  Only the prospect of the death penalty made this post-conviction deal possible, and the cost to the Pennsylvania court systems from direct and collateral appeals could have been considerable absent this deal.

Recent related post:

• After three PA murder convictions, which form of LWOP will abortion doctor get?