Friday, August 18, 2017

Califorina judge precludes death penalty for mass murderer as sanction for government misconduct

A helpful reader made sure I did not miss the notable state trial ruling reported in this new HuffPost piece.  As the piece reports, "Scott Dekraai, a 47-year-old man who admitted to killing eight people at a beauty salon in the worst mass shooting in Orange County, California, history, will not face execution for his crimes because of law enforcement misconduct linked to a jail informant program, a judge ruled Friday."  Here is more:

In a rare move, Superior Court Judge Thomas Goethals excluded the death penalty as a punishment option.  The ruling comes after the judge held weeks of hearings centered on whether the Orange County Sheriff’s Department could be trusted to turn over all records in the case.

It’s now expected that next month Goethals will sentence Dekraai to eight consecutive life terms in prison without the possibility of parole ― unless the California Attorney General’s office files a challenge to the ruling with the 4th District Court of Appeal.  “This is not a punitive sanction,” Goethals said in court Friday. “Rather it is a remedial sanction necessitated by the ongoing prosecutorial misconduct.”

Deputy Attorney General Michael Murphy ― the prosecutor who took over the Dekraai case after Goethals recused the Orange County District Attorney’s office due to misconduct ― had argued that the judge should keep the death penalty on the table.  Murphy said that Goethals had already doled out the appropriate sanctions in removing the district attorney’s office from the case and that excluding the death penalty would amount to an additional, unnecessary sanction.  Ultimately, Goethals disagreed. Reading from his ruling, the judge said that compliance by prosecutors and other law enforcement officers with his lawful court orders to turn over evidence in the Dekraai case “remains an elusive goal” and that ignoring those violations would be “unconscionable.”...

The judge’s ruling is extraordinary in the case of a mass murderer.  Dekraai almost immediately confessed to police about his role in the 2011 killing. He formally pleaded guilty to the crimes in 2014.  It appeared Dekraai would swiftly be dispatched to San Quentin’s death row.  But the case against him has been marred by allegations of egregious government malfeasance. His sentencing has remained in limbo amid ongoing allegations that county prosecutors and sheriff’s deputies improperly used a jailhouse informant in his case and then hid key evidence about that for years....

Just days after the 2011 shooting, county law enforcement moved Dekraai, then held in a local jail, next to a prolific jailhouse informant, Fernando Perez. Perez questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more conversations between the pair.

While it is generally legal for law enforcement authorities to use informants to help bolster cases, Dekraai’s lawyer, Assistant Public Defender Scott Sanders, has argued that in the particular circumstances, the move was a violation of his client’s constitutional rights.  That’s because it is illegal for government agents, including informants, to question or coerce statements out of a defendant who has been formally charged with crimes and is already represented by a lawyer, as Dekraai was.  Prosecutors contended there was no intentional violation because they did not instruct Perez to question Dekraai.

While the contents of the conversations between Dekraai and Perez remain sealed, court records have shown that the informant did probe Dekraai about his crimes.  As Sanders requested more information about the contacts between the two men, he discovered that Perez had also been used as an informant against another one of his clients, Daniel Wozniak.  Wozniak was sentenced to death last year for the killing of two of his friends in an attempt to fund his wedding.

Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. Sanders pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies.... Additional evidence of the informant program came to light over the course of four years and three evidentiary hearings. Sanders’ efforts would ultimately reveal a disturbing trove of long-hidden records: a 25-year-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants, which was deleted in 2013 just days before Judge Goethals issued an order requiring its disclosure; and internal sheriff’s department memos, including one boasting of “hundreds of informants.”...

Nonetheless, the sheriff’s department continues to deny a jail informant program exists.  In recent hearings, Sheriff Sandra Hutchens and members of her command and management staff suggested that if there was any informant-related misconduct in the jails by deputies, it was the work of just a handful of rogue officers operating independently of their orders.  Three deputies refused to testify at the hearings, invoking their Fifth Amendment right to silence.  Leaders of the sheriff’s department have also said they’ve made changes to how deputies handle inmates in the jail. The district attorney’s office has maintained that any misconduct by county prosecutors was unintentional and that the scandal has been overblown....

 The 4th District Court of Appeal found last year that the cheating by prosecutors and sheriff’s officials in the county was very real and that the “magnitude of the systemic problems cannot be overlooked.”  Afterward, the U.S. Department of Justice announced an investigation into the official use of jail informants in Orange County.

The scandal had already led to the unraveling of more than a dozen murder, attempted murder and felony assault cases in the county and threatens to upend countless more.  But the ruling in Dekraai’s case on Friday is arguably the most crushing defeat that the beleaguered district attorney’s office has faced since the scandal broke.

UPDATE: A copy of the ruling referenced above is available at this link.

August 18, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, August 16, 2017

DC sniper Lee Malvo loses one bid for Miller resentencing in Maryland state courts

As reported in this Washington Post piece, "Lee Boyd Malvo’s six life sentences, for the six Montgomery County, Md., slayings he committed as a 17-year-old in 2002, were allowed to stand Wednesday after a Montgomery judge found that Malvo was not given mandatory life terms." Here is more about this latest ruling in a high-profile case:

Malvo, now 32, could still have the sentences overturned by a federal court in Maryland, which is also considering his appeal. In Virginia, life sentences for his jury conviction in one murder case and his guilty pleas to two other murders were overturned in May by a federal judge because of the Supreme Court’s ruling. Virginia is appealing the order that Malvo must be resentenced in those three cases.

Malvo and John Allen Muhammad began a cross-country shooting rampage in Washington state in February 2002 and concluded with a series of 13 shootings, 10 of them fatal, in the D.C. area in October of that year. Malvo was tried first for a fatal shooting in Falls Church, Va., and a jury in Chesapeake, Va., convicted him but chose a life sentence without parole rather than a death sentence. Muhammad was tried for a slaying in Manassas, Va., and a jury in Virginia Beach convicted him and sentenced him to death. Malvo then pleaded guilty to two more slayings near Fredericksburg, Va., and received two more life sentences.

Having already been convicted of three slayings in Virginia, Malvo in 2006 testified against Muhammad in his trial in Montgomery County and then pleaded guilty to six counts of first-degree murder. Montgomery Circuit Court Judge James L. Ryan then imposed six more consecutive life sentences on Malvo....

Judge Ryan has since retired. But Judge Robert A. Greenberg issued a 20-page ruling Tuesday, released publicly on Wednesday, that concluded that “Judge Ryan is presumed to have known the law,” and that Malvo was not facing mandatory life-without-parole sentences when he was sentenced. “Clearly, Maryland employs a discretionary sentencing scheme,” Greenberg wrote, noting that Ryan had a range of options from a suspended sentence to life without parole. “Judge Ryan would have been well aware that a juvenile (albeit one four months from majority) ought to be beyond rehabilitation before life-without-parole could be imposed … the court expressly considered Defendant’s youth in sentencing him. ”

But even if Malvo’s sentences were mandatory, Greenberg ruled, “Judge Ryan affirmatively considered all the relevant factors at play,” to include extensive biographical and psychological reports on Malvo, “and the plain import of his words at the time of sentencing was that Defendant is ‘irreparably corrupted.’ ”

Ryan’s ruling does not affect Malvo’s appeal of his sentences in the federal court in Maryland or his Virginia cases.

August 16, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Saturday, August 12, 2017

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, August 10, 2017

A reminder of why an active death penalty system in the US now seems so unlikley

Arguably the US has never had an active death penalty system, though there were a few hundred executions each year during the first decades of the 20th Century.  In the so-called modern death penalty era since 1976, the most completed executions in a single year was 98 (in 1999); there have been fewer than 50 executions in nearly every year over the last decades, and only 20 completed executions in 2016.  (This page from the Death Penalty information Center provides these recent details.)

As I have mentioned before, I find it notable that all the new law-and-order talk coming from the Trump Administration has not really included talk of ramping up use of the death penalty.  That, in my view, is a mark of a achievement by the abolitionist movement.  Another mark is the extraordinary difficulty these seems to be in securing death sentences, as discussed in this new Injustice Today piece headlined "Even in the deep red South, death sentences are on the decline." Here is an excerpt:

Twenty years ago, a brutal murder in a red state like Mississippi would likely guarantee a death sentence for a defendant.  But as last week’s sentencing of Scotty Lakeith Street illustrates, juries in the South and across the country continue to shift away from capital punishment.  In 1997, four people in Mississippi were sentenced to death; last year, 2016, not one person was. Street was sentenced to life without parole for stabbing retired teacher Frankie Fairley to death in 2014. The jury in Street’s trial, faced with a choice between the death penalty or life in prison, couldn’t reach a unanimous verdict, and split 10–2....

Those that opted for life without parole may have been swayed by Street’s extensive history of mental illness. As reported by WLOX, jurors heard testimony from his sister that Street had “been institutionalized so much, it’s beyond my count.” Street’s lawyers also presented testimony from a mental health provider who explained that Street suffered from schizophrenia and “needed to be in a group home with a caregiver.”  Street was also reported to have displayed “bizarre behavior,” including “putting plastic bags on his head to keep his brain from leaking out and running naked in public with objects tied to his scrotum.”...

Mental illness aside, death sentences are on the decline across the country.  Last year, 30 people were sentenced to death in the U.S., while in the mid-1990s, more than 300 people received capital sentences.  That decline in popularity is reflected in Street’s case, as well as in other Mississippi capital cases.  Though the death penalty’s legality remains alive and well, juries across the country are rejecting it.

August 10, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Wednesday, August 09, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, August 08, 2017

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 07, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, August 06, 2017

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Saturday, August 05, 2017

"Criminal justice reformers are hooked on drug courts, they should kick the habit"

The title of this post is the headline of this notable new commentary by Jasmine Tyler in The Hill. Here are excerpts:

With opioid overdose deaths hitting record highs throughout the US, and the White House Commission calling for declaring a state of emergency, many are looking for new solutions to addiction and overdose. But one proposal popular in some circles — the expanded use of drug courts — is not the perfect solution some make it out to be.

Drug courts are an old idea. Created in the 80s to expedite the overwhelmed court dockets created by the drug war, they have already enjoyed a great deal of fanfare and funding — from both sides of the political aisle. But despite the good intentions that often underpin them, they are a flawed solution.

These courts are squarely housed in the criminal justice system, where there is little medical expertise or care available but where punitive sanctions are plentiful. Physicians for Human Rights recently reported that drug courts “routinely fail to provide adequate, medically sound treatment for substance use disorders, with treatment plans that are at times designed and facilitated by individuals with little to no medical training.”

And, even though relapse is an expected part of recovery, people brought before a drug court with a positive drug test are often jailed, and can end up serving lengthy periods of time — sometimes more than had they been prosecuted through the regular criminal system.

Interestingly, the White House Commission didn’t even mention drug courts in the interim report released on July 31, but they did support a number of cutting edge, public health centered, responses such as expanding harm reduction approaches like medication-assisted therapy.

Other solutions the commission should explore for their final report include promoting diversion programs to keep people out of the criminal justice system, making the overdose prevention medication Naloxone available over the counter, and decriminalizing possession of drugs for personal use....

A recent broad study found that there is no evidence that compulsory treatment is effective and may do more harm, and even the Government Accountability Office has found the purported cost-savings difficult to substantiate.

In my days working as a sentencing advocate with public defenders, clients would frequently ask for jail time in lieu of drug courts. This wasn’t because they had no concerns for their own health and well-being, but the opposite. They were deeply concerned with their own health and well-being and felt drug courts would cause more problems for them in the long run....

Beyond the many questions about their effectiveness, drug courts do not address the fundamental reality that any kind of criminal sanctions are simply inappropriate for the overwhelming majority of drug offenders, whose only crime is the personal use of drugs or possession of drugs for personal use. In fact, by offering a notionally “softer” kind of criminalization, drug courts may actually help entrench that fundamentally untenable paradigm....

Drug courts might be a tool in the toolbox of a better system if they are focused only on offenses other than drug use or possession — for example, property crimes committed in connection with drug dependence. But even in that case, they should only be considered if they are set up to provide treatment that is medically appropriate, as well as other social supports, and if — and this is a big if — courts would truly take high risk, high need defendants as the National Association of Drug Court Professionals says they should.

Our communities deserve 21st century solutions and drug courts are, at best, a better version of a broken and outmoded system. They may sometimes have a useful place in the reality we’re stuck with, but they certainly aren’t the way forward. Instead of looking back at a criminal justice solution that has failed, the commission should stay on the right track and focus on health-based programs that address the opioid crisis.

August 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Friday, August 04, 2017

Sizable set of Senators inquire about BOP's continued failure to use compassionate release

As reported in this article from The Hill, headlined "Senators push federal prisons to expand compassionate release," a notable group of legislators sent a notable letter yesterday concerning the work of the federal Bureau of Prisons. Here are the details:

A bipartisan group of senators are calling on federal prison officials to follow through on recommendations to expand the use of compassionate release.

In a letter Thursday, Sen. Brian Schatz (D-Hawaii) and 11 other senators asked acting Federal Bureau of Prisons (BOP) Director Thomas Kane and Deputy Attorney General Rod Rosenstein to take a serious look at a prison bureau program that allows federally incarcerated people to appeal for early release if they present certain “extraordinary and compelling” reasons.

The lawmakers, who include Sens. Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), John Cornyn (R-Texas) and Cory Booker (D-N.J.), pointed to a 2013 report in which the Department of Justice inspector general recommended expanding the compassionate release program to deal with the increasingly large number of aging inmates with serious medical conditions.

Though the senators said the BOP adopted new policies following that report to expand its criteria, none of the 203 elderly inmates who applied under medical reasons in the 13 months following the report were approved.  Last year, the U.S. Sentencing Commission expanded and clarified the criteria for age and family circumstances that make an inmate eligible for compassionate release and encouraged the BOP to file a motion for release if an inmate meets the new policy.

In light of these changes, the senators asked Kane and Rosenstein how many compassionate release requests received in the last three years have been granted and denied, how many petitioners have died waiting for a response, what steps the bureau has taken to follow the commission’s directives and what action the bureau can take to increase its use of compassionate release.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Thom Tillis (R-N.C.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Dick Durbin (D-Ill.) and Tammy Duckworth (D-Ill.) also signed the letter.

A few prior related posts:

August 4, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16)

Thursday, August 03, 2017

"Capital Punishment of Unintentional Felony Murder"

The title of this post is the title of this recent paper that I just recently came across via SSRN. The paper was authored by Guyora Binder, Robert Weisberg and Brenner Fissell, and here is its abstract:

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment.  This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill.  The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death.

This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability.  We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder.

August 3, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

"Justice Thomas, Criminal Justice, and Originalism’s Legitimacy"

The title of this post is the title of this notable new essay authored by Judge William Pryor as part of a Yale Law Journal Forum collections of essays under the heading "Justice Thomas: Twenty-Five Years on the Supreme Court."  The essay covers lots of elements of Justice Thomas's criminal justice jurisprudence, and I recommend the piece in full.  And especially because Judge Pryor is the current Acting Chair of the US Sentencing Commission, I figure sentencing fans might find this passage from the essay interesting:

A second area where Justices Thomas and Scalia agreed on a legal rule but disagreed on how to apply it was in determining whether statutory mandatory minimum sentences violated the right to a jury trial. Both Justices agreed with the rule established in Apprendi v. New Jersey that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. And both voted to invalidate mandatory sentencing guidelines that required judges to find facts that would increase sentencing ranges. But the Justices disagreed about why mandatory sentencing guidelines were problematic. Justice Scalia saw the problem as permitting fact-finding to increase the ceiling of a judge’s discretion in a way that could disadvantage a defendant. Justice Thomas, on the other hand, saw the problem as changing the range of discretion, even if the sentencing ceiling remained unchanged.

This difference led the Justices to opposite positions in Alleyne, discussed above. Justice Thomas wrote for the majority that facts that trigger statutory mandatory minimum sentences must be proved to a jury because the facts “alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Justice Scalia joined a dissent written by Chief Justice Roberts that viewed the application of a statutory mandatory minimum as a limit on the discretion of the judge that in no way affected the role of the jury.

As an aside, I respectfully disagree with both Justices Scalia’s and Thomas’s decisions to join in the majority opinions in Blakely and Booker, the foundational decisions underlying Alleyne. The notion that mandatory guidelines that regulate judicial discretion within a statutory range of punishment to reduce sentencing disparities somehow violates a defendant’s right to a jury trial even though it is entirely permissible for judges, in an indeterminate system, to find sentencing facts and impose punishments anywhere within a broad statutory range has never made sense to me. I side with another Yalie, Justice Samuel Alito, on that one. But accepting the logic of Blakely and Booker that the Sixth Amendment requires a jury to find all facts essential to the potential penalty, only Justice Thomas’s position in Alleyne makes sense.

August 3, 2017 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Distinct sentencing advice from family members for teen guilty of involuntary manslaughter for encouraging suicide

This local article, fully headlined "Conrad Roy’s aunt: Give Michelle Carter 20 years; Defendant’s dad wants probation," reports in the very different advice being given to a juvenile judge in Massachusetts in a high-profile case due to be sentenced today. Here are the details:

A grieving aunt of teen suicide victim Conrad Roy III is looking for a 20-year prison sentence for Michelle Carter tomorrow on the heels of her conviction in the blockbuster suicide-by-text case — but the girl’s worried dad is pleading for probation. “I believe she should be kept far away from society,” wrote Kim Bozzi, Roy’s aunt, in a statement she said she plans to read at Carter’s sentencing inside Taunton Trial Court.

“Take away the spotlight that she so desperately craves. Twenty years may seem extreme but it is still twenty more than Conrad will ever have,” Bozzi said in the written statement she gave to the Herald.

But David Carter, Michelle’s father, begged for probation and “continued counselling” in a July letter to Judge Lawrence Moniz. “She will forever live with what she has done and I know will be a better person because of it,” David Carter wrote in the signed letter, provided to the Herald. “I ask of you to invoke leniency in your decision-making process for my loving child Michelle.”...

The judge found that Carter caused the death of Roy, who killed himself in a Fairhaven Kmart parking lot in 2014 by filling his truck with carbon monoxide. Carter, 20, of Plainville, who had an almost entirely virtual relationship with Roy, goaded him into killing himself through a series of texts and calls. The Mattapoisett teen left the truck as it filled with deadly fumes, but according to testimony at Carter’s trial, she told him on the phone to “get back in.”

“I’m unsure when she decided to set her sick plan into motion or why, but when she did she did it relentlessly, it was calculated and it was planned down to a T,” Bozzi wrote in the victim-impact statement. “She preyed on his vulnerabilities, he trusted her, which in turn, cost him his life.” Bozzi, who attended every court appearance, told the Herald other family members are prepared to speak as well. She said Carter’s conviction was a relief and that “what happens next is up to God and a judge.”

Prior related post:

UPDATE:  Michelle Carter received a prison sentence of 2.5 years, but only half has to be actually served in prison as explained in this CNN article.  It starts this way:

Michelle Carter, who was convicted of involuntary manslaughter in the 2014 suicide of her boyfriend, was sentenced Thursday to a two-and-a-half-year term, with 15 months in prison and the balance suspended plus a period of supervised probation.

"This court must and has balanced between rehabilitation, the promise that rehabilitation would work and a punishment for the actions that have occurred," said Bristol County Juvenile Court Judge Lawrence Moniz.

August 3, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14)

Wednesday, August 02, 2017

"Sentencing by Computer: Enhancing Sentencing Transparency and Predictability, and (Possibly) Bridging the Gap between Sentencing Knowledge and Practice"

The title of this post is the title of this interesting looking new article available via SSRN authored by Mirko Bagaric and Gabrielle Wolf. Here is the abstract:

Computer technology is rapidly infiltrating and changing many aspects of the law. Judicial decision-making has, however, remained largely impervious to technological developments. Sentencing is one of the most controversial, complex and dynamic legal areas.  Sentencing law is also fundamentally broken and has resulted in a mass incarceration crisis, which is the most serious sociolegal problem currently afflicting the United States.  Despite this, it is also ostensibly one of the areas of law that is most amenable to automated decisionmaking.  This is because the relevant variables that inform sentencing decisions are normally clear, especially in circumstances where an offense attracts a presumptive or fixed penalty.

In this Article, we examine the desirability of computers, rather than judges, making sentencing decisions. Some disadvantages may be associated with sentencing by computer, including the possibility that there could be less opportunity to adapt penalties to the specific facts of a case than if a judge made the decision.  However, if an algorithm is developed and applied in a clear and transparent manner, the benefits of computerized sentencing will outweigh the potential disadvantages.  Indeed, we argue that computerized sentencing has the potential to achieve superior outcomes to sentences imposed by judges.  In particular, it can lead to greater transparency, predictability and consistency in decision-making, and eliminate the subconscious bias that currently afflicts the decisions of some judges.  

Moreover, the introduction of computerized sentencing could be the catalyst for a much needed, wide-ranging reassessment of substantive sentencing law, as occurred four decades ago when the United States’ sentencing system changed from an indeterminate system to the largely prescriptive process that exists today.  A fundamental review of sentencing law would almost inevitably close the gap between sentencing knowledge and practice, thereby resulting in profound community benefits, including enhanced community safety and a reduction in the number of prisoners.

August 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, August 01, 2017

"Prosecutors’ Dilemma: Will Conviction Lead to ‘Life Sentence of Deportation’?"

The title of this post is the headline of this intriguing New York Times front-page article which indirectly highlights the realities and uncertainties of prosecutorial discretion and collateral consequences.  Here are excerpts:

Now that President Trump’s hard line has made deportation a keener threat, a growing number of district attorneys are coming to the same reckoning, concluding that prosecutors should consider potential repercussions for immigrants before closing a plea deal. At the same time, cities and states are reshaping how the criminal justice system treats immigrants, hoping to hopscotch around any unintended immigration pitfalls.

These shifts may inaugurate yet another local-versus-federal conflict with the Trump administration, which is already tussling with many liberal cities over other protections for immigrants. For prosecutors, such policies are also stretching, if not bursting, the bounds of the profession. Justice is supposed to be blind to the identity of a defendant. But, the argument goes, the stakes might warrant a peek.

“There’s certainly a line of argument that says, ‘Nope, we’re not going to consider all your individual circumstances, we want to treat everybody the same,’” said Dan Satterberg, the prosecuting attorney for Seattle and a longtime Republican, who instituted an immigration-consequences policy last year and strengthened it after the presidential election. “But more and more, my eyes are open that treating people the same means that there isn’t a life sentence of deportation that might accompany that conviction.”...

But many prosecutors remain wary, hesitant to meddle in what they regard as the federal government’s business and even more reluctant to depart from what they say is a bedrock principle of the system. “There’s probably hundreds if not thousands of issues that I suppose we could take into consideration,” said Brian McIntyre, the county attorney in Cochise County, Ariz., “and when we do that, we necessarily wind up not being as fair to someone else.”... If he made accommodations for an immigrant, Mr. McIntyre said, he felt that he would also owe a citizen in similar circumstances the same option, “because is he not being, essentially, negatively impacted by his U.S. citizenry?”

A criminal record often has different stakes for an immigrant than it does for a citizen. It can mean losing a green card or being barred from citizenship. Those who lack legal status can lose any chance to gain it. Those with legal status, as well as those without, can face automatic deportation.

In many cases, the city-and-state-level changes dovetail with broader criminal justice reforms that were already underway before Mr. Trump took office. But to the administration, policies that help noncitizens duck immigration penalties are tantamount to an assault on the rule of law. “It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country,” Attorney General Jeff Sessions said in April.

The local efforts to help immigrants may not always work. The Trump administration has made clear that anyone without legal status may be deported, regardless of whether they have been convicted of a crime. But reducing criminal penalties can help immigrants by keeping them out of jail, which can make it more difficult for Immigration and Customs Enforcement to find them, or by preserving their options in immigration court....

Prosecutors who take immigration status into account say this consideration will not be extended to serious or violent crimes. They argue that showing flexibility in nonviolent, minor cases will help build trust with immigrants in their communities, making them more likely to report crimes and serve as witnesses. The acting Brooklyn district attorney, Eric Gonzalez, went further than most in April, when he announced that his prosecutors would begin notifying defense lawyers about the potential immigration fallout of their clients’ cases and that he would hire two in-house immigration lawyers to consult on prosecutions.

Days later, the state’s attorney for Baltimore, Marilyn J. Mosby, said she had told her staff members to use their discretion when it came to cases with an immigration factor, considering defendants’ prior records and community ties. “There’s no set standard,” she said. “You have to base it on everything that’s in front of you.”

It is not yet clear what that will look like in Baltimore or Brooklyn. But in Santa Clara County, Calif., whose district attorney was among the first to outline an official policy, prosecutors often allow a noncitizen to plead guilty to a lesser charge in exchange for more jail time or probation. “If we’re giving something, we’re going to get something,” said the district attorney, Jeff Rosen.

California law now requires immigration consequences to be factored into criminal cases. The state has also passed a law allowing people to erase or revise old convictions if they successfully argue that they were not advised at the time that a guilty or no-contest plea would endanger their immigration status.

August 1, 2017 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, July 27, 2017

Reviewing data and lessons of recent Urban Institute report on rising prison time

German Lopez has this new Vox piece that effectively reviews the data and lessons on the recent Urban Institute big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." (This prior post covered that report when it was first released a few weeks ago.)  The full title of this piece captures its primary themes: "Liberals often blame mass incarceration on the war on drugs.  That’s not quite right. A new report shows that the real increase in prison sentences has come from violent offenses, not lower-level crimes."  Here are excerpts:

“Longer sentences are stacking up,” Ryan King, the lead researcher for the Urban report, told me.  “And in many states, the data suggest that they’re stacking up at a rate significant enough that it can offset reforms for the less serious offenses.”

The report includes various other findings.  It found there are vast racial disparities in the top 10 percent of prison sentences, just as there are for lower-level offenses.  The people locked up also tend to be fairly young, which robs communities — particularly black neighborhoods — of people who could grow up to be productive citizens instead of serving out disproportionately harsh sentences. It also told the stories of a few people who suffered through some of these long sentences.  You should really read the whole thing.

But I want to home in on the big finding because it shows what the traditional story about mass incarceration has gotten wrong.  Much of the attention has gone to harsh mandatory minimum sentences for drug offenses, but they seem to have had a fairly small impact on overall incarceration rates.  What seemed to change, instead, is that the system enforced longer prison sentences for some of the worst offenses — and that led to a lot more imprisonment....

To really address the problem of mass incarceration, then, it’s not enough to just focus on drug crimes; it’s also important to focus on violent offenses. It’s also not enough to just focus on the laws guiding prison sentences; it’s also necessary to look at how those laws are enforced in the real world. And addressing all of these issues will require a truly systemic effort — from addressing what the local prosecutor is doing to what laws state policymakers pass to what the president and his attorney general are asking the US Department of Justice to do.

It will be a long, arduous effort.  After years of lawmakers building up incarceration at every level of government, it will likely take years of more policymaking at every level of government to unwind what previous generations of leaders have done.  “This is a long-term project,” King of Urban said. “But we do see it as one that’s ringing a bell saying, look, we’re going to have to deal with this.”

July 27, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, July 24, 2017

"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"

The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:

“Reform” is one of those ambiguous words that mean different things to different people.  I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe.  In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons.  By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.

Every year about 650,000 of those prisoners are released back into the world.  We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years.  We have a corrections system that fails to correct.

Here are a few lessons Washington can learn from the states.

Lesson 1: It is possible to reduce incarceration and crime at the same time. ...

Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....

Lesson 4: While the front end is important, don’t neglect the back end....

Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...

Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...

Lesson 8: Many states are finding that incentives work better than mandates.

July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Sunday, July 23, 2017

Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!

This local story out of Tennessee is hard to believe, but it does not appear to be fake news.  The story is headlined "White County Inmates Given Reduced Jail Time If They Get Vasectomy," and here are excerpts:

Inmates in White County, Tennessee have been given credit for their jail time if they voluntarily agree to have a vasectomy or birth control implant, a popular new program that is being called “unconstitutional” by the ACLU.

On May 15, 2017 General Sessions Judge Sam Benningfield signed a standing order that allows inmates to receive 30 days credit toward jail time if they undergo a birth control procedure. Women who volunteer to participate in the program are given a free Nexplanon implant in their arm, the implant helps prevent pregnancies for up to four years. Men who volunteer to participate are given a vasectomy, free of charge, by the Tennessee Department of Health.

County officials said that since the program began a few months ago 32 women have gotten the Nexplananon implant and 38 men were waiting to have the vasectomy procedure performed.

Judge Benningfield told NewsChannel 5 that he was trying to break a vicious cycle of repeat offenders who constantly come into his courtroom on drug related charges, subsequently can’t afford child support and have trouble finding jobs. “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves,” Judge Benningfield said in an interview.

First elected in 1998, Judge Benningfield decided to implement the program after speaking with officials at the Tennessee Department of Health. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win, win,” he added.

Inmates in the White County jail were also given two days credit toward their jail sentence if they complete a State of Tennessee, Department of Health Neonatal Syndrome Education Program. The class aimed to educate those who are incarcerated about the dangers of having children while under the influence of drugs. “Hopefully while they’re staying here we rehabilitate them so they never come back,” the judge said.

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal. “It’s concerning to me, my office doesn’t support this order,” Dunaway said....

On Wednesday, the ACLU released this statement on the program: "Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

There are many thing so very remarkable about this story, but I am especially struck by how many jail inmates are willing to undergo a life-changing procedure simply to avoid 30 days in jail. Anyone who doubts the coercive pressures of even a short jail stay (say because of an inability to make bail) should be shown this story.

July 23, 2017 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19)

Saturday, July 22, 2017

Senators Kamala Harris and Rand Paul make the case for bail reforms

In this New York Times op-ed, the notable pair of Kamala Harris and Rand Paul explain the reasoning behind their new bill to reform bail practices.  The piece is headlined "To Shrink Jails, Let’s Reform Bail," and here are excerpts:

Our justice system was designed with a promise: to treat all people equally.  Yet that doesn’t happen for many of the 450,000 Americans who sit in jail today awaiting trial because they cannot afford to pay bail.

Whether someone stays in jail or not is far too often determined by wealth or social connections, even though just a few days behind bars can cost people their job, home, custody of their children — or their life.  As criminal justice groups work to change sentencing and mandatory minimum laws, we must also reform a bail system that is discriminatory and wasteful.

Excessive bail disproportionately harms people from low-income communities and communities of color.  The Supreme Court ruled in Bearden v. Georgia in 1983 that the Constitution prohibits “punishing a person for his poverty,” but that’s exactly what this system does. Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.

Meanwhile, black and Latino defendants are more likely to be detained before trial and less likely to be able to post bail compared with similarly situated white defendants.  In fact, black and Latino men respectively pay 35 percent and 19 percent higher bail than white men.

This isn’t just unjust. It also wastes taxpayer dollars.  People awaiting trial account for 95 percent of the growth in the jail population from 2000 to 2014, and it costs roughly $38 million every day to imprison these largely nonviolent defendants.  That adds up to $14 billion a year.

Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime.  But research has shown that low-risk defendants who are detained more than 24 hours and then released are actually less likely to show up in court than those who are detained less than a day....

Our bail system is broken. And it’s time to fix it.  That’s why we’re introducing the Pretrial Integrity and Safety Act to encourage states to reform or replace the bail system.  This should not be a partisan issue.

First, our legislation empowers states to build on best practices.  Kentucky and New Jersey, for instance, have shifted from bail toward personalized risk assessments that analyze factors such as criminal history and substance abuse. These are better indicators of whether a defendant is a flight risk or a threat to the public and ought to be held without bail.

Colorado and West Virginia have improved pretrial services and supervision, such as using telephone reminders so fewer defendants miss court dates and end up detained.  These nudges work.  Over the second half of 2006, automated phone call reminders in Multnomah County in Oregon, resulted in 750 people showing up in court who otherwise may have forgotten their date.

Instead of the federal government mandating a one-size-fits-all approach, this bill provides Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.

Enabling states to better institute such reforms also honors one of our nation’s core documents, the Bill of Rights. In drafting the Eighth Amendment, which prohibits excessive bail, the founders sought to protect people from unchecked government power in the criminal justice system.

Second, our bill holds states accountable. Any state receiving support must report on its progress and make sure that reforms like risk assessments are not discriminatory through analyses of trends and data.  This will show that it’s possible to demand transformation, transparency and fairness.

Finally, this bill encourages better data collection. Data on the pretrial process is notoriously sparse. By collecting information on how state and local courts handle defendants, we can help guarantee that reforms yield better outcomes.

July 22, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

"The Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases"

The title of this post is the title of this interesting empirical paper authored by Stephanie Holmes Didwania that was recently posted on SSRN. Here is the abstract:

This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence — when one is charged — by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence.

To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.

July 20, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.  The Superior Court held SORNA’s registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA’s effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses.  For the following reasons, we reverse and hold: 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (27)

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Plea Agreements As Constitutional Contracts"

The title of this post is the title of this notable new article authored by Colin Miller available via SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes.  Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion.  No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes.  This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses.  First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements.  Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections — the implied covenant of good faith and fair dealing — would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.

July 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Details emerging on new Trump Administration approach to asset forfeiture ... UPDATED with new DOJ memo

As noted in this prior post, on Monday Attorney General Jeff Sessions gave a speech in which he indicated that a "new directive on asset forfeiture" was forthcoming that, "especially for drug traffickers," sought "to increase forfeitures."  This new AP article, headlined "US restoring asset seizures - with safeguards," reports on what this new directive is going to include. Here are excerpts from the AP piece:

The Trump administration will soon restore the ability of police to seize suspects’ money and property with federal help, but The Associated Press has learned the policy will come with a series of new provisions aimed at preventing the types of abuse that led the Obama Justice Department to severely curtail the practice.

At issue is asset forfeiture, which has been criticized because it allows law enforcement to take possessions without criminal convictions or, in some cases, indictments. The policy to be rolled out Wednesday targets so-called adoptive forfeiture, which lets local authorities circumvent more-restrictive state laws to seize property under federal law. The proceeds are then shared with federal counterparts.

Former Attorney General Eric Holder significantly limited the practice in response to criticism that it was ripe for abuse, particularly with police seizures of small amounts of cash. Attorney General Jeff Sessions plans to ease those restrictions, but also impose new requirements on when federal law can be used, a senior Justice Department official briefed on the policy said Tuesday. The official, who spoke to the AP on condition of anonymity, was not authorized to discuss the changes before their unveiling.

Key changes include requiring more detail from police agencies about probable cause justifying a seizure before federal authorities get involved. Also, the Justice Department will have to decide more quickly whether to take on local seizures and also let property owners know their rights and the status of their belongings within 45 days of the seizure, faster than federal law requires.

Another key change will make it harder for police to seize less than $10,000 unless they have a state warrant, have made an arrest related to the seizure, have taken other contraband, such as drugs, along with the money, or the owner has confessed to a crime. Without at least one of those conditions, authorities will need a federal prosecutor’s approval to seize it under federal law.

Old rules set that threshold at $5,000, the official said. The old process rarely required a federal prosecutor’s sign-off, said Stefan Cassella, a former federal prosecutor and expert on asset forfeiture and money laundering law.

Sessions’ support for asset forfeiture is in keeping with his tough-on-crime agenda and aligns with his oft-stated view that the Justice Department’s top priority should be helping local law enforcement fight violent crime. Police departments use the seizures for expenses, and some agencies felt Holder’s restrictions left them without a critical funding source. When he forecast the rollback of the Holder provision at a conference of district attorneys, the announcement drew applause.

But an embrace of asset forfeiture follows bipartisan efforts to overhaul the practice, and as a growing number of states have made their own laws limiting its use. Republican Rep. Darrell Issa of California, who sponsored legislation this year to tightly regulate asset forfeiture, told the AP that Sessions’ move is “a troubling step backward” that would “bring back a loophole that’s become one of the most flagrantly abused provisions of this policy.”

“I’m glad that at least some safeguards will be put in place, but their plan to expand civil forfeiture is, really, just as concerning as it was before,” Issa said. “Criminals shouldn’t be able to keep the proceeds of their crime, but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen.”

UPDATE Here now is the official US Department of Justice news release, headlined "Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets Seized by State or Local Law Enforcement." And here is the associated one-page order.

July 19, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, July 18, 2017

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

The title of this post is the title of this notable note by Jeremy Isard that was brought to my attention by a helpful reader. Here is the abstract:

This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings.  Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison.  By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science.  Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.  

July 18, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, July 17, 2017

In latest speech, AG Sessions advocates for more gun and prescription drug prosecutions and more asset forfeiture

Attorney General Sessions gave another notable speech today, and this one was delivered to the National District Attorneys Association.  Regular readers are familiar with the themes AG Sessions has been stressing of late, but these excerpts highlight what struck me as some new parts to what the AG is talking up:

We have a multi-front battle in front of us right now: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers, combined with a culture in which family and discipline seems to be eroding further.

From the early 1990s until just a few years ago, the crime rate steadily came down across the country. But violent crime is rising.  The murder rate, for example, has surged nearly 11 percent nationwide in just one year — the largest increase since 1968.  Per capita homicide rates are up in 27 of our 35 largest cities....

These numbers are deeply troubling — and especially since they represent a sharp reversal of decades of progress. My best judgment is that this rise is not an aberration or a blip.  We must take these developments seriously and consider carefully what can be done about them.  Yielding to the trend is not an option for America and certainly not to us....

We must encourage proven police techniques like community-based, proactive policing and “broken windows” — policies that are lawful and proven to work. Better training, better morale, professional excellence are goals of yours. My goal is to help you be effective and never to make your work more difficult. I am asking our U.S. Attorneys to be leaders in this approach. In the long run, there is nothing we can do that is more impactful....

I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.

Next, the DEA reports that 80 percent of heroin addicts started with abuse of prescription drugs. As you know, more than 50,000 died of drug overdoses in 2015. Preliminary numbers indicate 2016 may hit 60,000. We have never seen numbers like this. This nation is prescribing and consuming far too many painkillers. This must end.

Last week, we announced the indictments of over 400 defendants as part of the annual Health Care Fraud Take Down. 120 of those involved opioid-related drug fraud and nearly 50 were doctors. Some of these frauds involved massive amounts of drugs. But I’m convinced this is a winnable war. We can significantly reduce this abuse, which includes the big drug companies as well.

DEA is making these cases a priority. They can make visits to physician and pharmacies and do checks on those who prescribe or sell these drugs. They are reviewing and identifying physician and pharmacy outliers that can help you narrow the search for crooks.

I would urge you to examine every case that involves an arrest of an individual illegally possessing prescription drugs. Make a condition of any plea bargain that the defendant tell where he or she got the drugs. Together, let’s get after these bad actors....

In addition, we hope to issue this week a new directive on asset forfeiture — especially for drug traffickers.  With care and professionalism, we plan to develop policies to increase forfeitures.  No criminal should be allowed to keep the proceeds of their crime.  Adoptive forfeitures are appropriate as is sharing with our partners....

As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact. With every conviction we secure, we make our communities safer.

July 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

PBS Frontline and the New York Times explore "Life on Parole"

The PBS series Frontline has this new documentary titled "Life on Parole," which will premiere at 10pm on Tuesday July 18 on most PBS stations (and the full film is available online now). Here is how the PBS site briefly describes the documentary:

With unique access, go inside an effort in Connecticut to change the way parole works and reduce the number of people returning to prison.  In collaboration with The New York Times, the film follows four former prisoners as they navigate the challenges of their first year on parole.

The New York Times series in this collaboration is titled "On the Outside," and it is described this way:

We followed 10 people after they were released from prison in a partnership with the PBS series "Frontline." These articles and videos look at the challenges that sent six of them back behind bars.

July 17, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (6)

Sunday, July 16, 2017

"Ministers of Justice and Mass Incarceration"

The title of this post is the title of this new paper available via SSRN authored by Lissa Griffin and Ellen Yaroshefsky. Here is the abstract:

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system.  As a consequence, there has been significant attention to the causes of mass incarceration.  These include the war on drugs and political decisions based on a “law and order” perspective.  Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas.  All of this occurred as crime rates dropped.

Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor.  It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence.  Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population.  That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions.  If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?

This Article examines the recognized role of the prosecutor as a “minister of justice,” and makes a range of suggested changes to the prosecution function.  These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.

July 16, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

DAG Rosenstein makes the case for his boss's new charging and sentencing directive to federal prosecutors

Deputy Attorney General Rod Rosenstein authored this notable op-ed appearing in the San Francisco Chronicle to explain and justify Attorney General Sessions' new memo to federal prosecutors concerning charging and  sentencing.  The piece was given the headline "Attorney General Jeff Sessions is serious about reducing crime," and here is its full text:

U.S. Attorney General Jeff Sessions recently revised the federal criminal charging policy. When federal prosecutors exercise their discretion to prosecute a case, they generally “should charge and pursue the most serious, readily provable offense” established by the evidence, he wrote in a May 10 memo. Prosecutors must use “good judgment” in determining “whether an exception may be justified” by the particular facts of the case. The Sessions memo reinstitutes a policy that existed for more than three decades. It was first implemented by President Jimmy Carter’s attorney general, Benjamin Civiletti.

From 2013 to 2017, however, the U.S. Department of Justice protected some criminals from mandatory minimum sentence laws enacted by Congress. During that time, unless cases satisfied criteria set by the attorney general, prosecutors were required to understate the quantity of drugs distributed by dealers and refrain from seeking sentence enhancements for repeat offenders. Beneficiaries of that policy were not obligated to accept responsibility or cooperate with authorities.

After that policy was adopted, the total number of drug dealers charged annually by federal prosecutors fell from nearly 30,000 — where it had stood for many years — to just 22,000. Meanwhile, drug-related violence has surged. There has been a significant spike in murders, including an 11 percent increase in 2015 alone.

Drug overdose deaths also have accelerated at a frightening and unprecedented pace. The annual toll of Americans killed by drug overdoses stood near 36,450 in 2008, with some 20,000 overdose deaths involving prescription drugs, according to the Centers for Disease Control and Prevention. Estimates show that the 2016 total was on the order of 60,000, making drug overdose the leading cause of death of Americans under age 50.

Officials in many cities are calling on federal prosecutors for help, and tough sentences are one of federal law enforcement’s most important tools. Used wisely, federal charges with stiff penalties enable U.S. attorneys to secure the cooperation of gang members, remove repeat offenders from the community and deter other criminals from taking their places.

In order to dismantle drug gangs that foment violence, federal authorities often pursue readily provable charges of drug distribution and conspiracy that carry stiff penalties. Lengthy sentences also yield collateral benefits. Many drug defendants have information about other criminals responsible for shootings and killings. The prospect of a substantial sentence reduction persuades many criminals to disregard the “no snitching” culture and help police catch other violent offenders.

Minor drug offenders rarely face federal prosecution, and offenders without serious criminal records usually can avoid mandatory penalties by truthfully identifying their co-conspirators. The Sessions policy is serious about crime. It does not aim to fill prisons with low-level drug offenders. It empowers prosecutors to help save lives.

Prior recent related posts: 

July 16, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, July 15, 2017

Notable high-profile functionality of the dysfunctional Pennsylvania death penalty

Long-time readers surely recall some (of many) prior posts, including ones here and here, highlighting some (of many)  dysfunctional realities of the death penalty in Pennsylvania.  But this local article about horrible multiple murders getting national attention highlights how even a dysfunctional death penalty can still serve a significant function.  The article is headlined "Legal experts praise Bucks deal that led to murder confession," and here are excerpts:

The deal that spared Cosmo DiNardo the death penalty in exchange for a murder confession in a case that’s captivated the region and drawn national attention was lauded Friday by legal experts, who said the agreement was a swift and shrewd way to bring the gruesome case nearer to a close.

Cosmo DiNardo, 20, confessed to participating in the killings of four men. DiNardo also agreed to tell investigators where to find the bodies and lead them to an accomplice.  In exchange for the cooperation, his defense lawyer Paul Lang said, prosecutors agreed not to seek the death penalty.

DiNardo’s four victims, young men from Bucks and Montgomery Counties, disappeared last week.  Their families’ fears were confirmed when human remains were discovered in a 12-foot grave on a farm owned by DiNardo’s parents.  On Friday, DiNardo was charged with murder and related offenses.  Authorities also arrested his cousin and alleged accomplice, Sean Kratz, 20, on the same charges.  And also Friday, they discovered the body of one of the missing men, Jimi Taro Patrick, 19, on the farm.  The remains of Dean A. Finocchiaro, 19; Thomas C. Meo, 21; and Mark R. Sturgis, 22, had been discovered elsewhere on the sprawling property Wednesday.

Bucks County District Attorney Matthew D. Weintraub on Friday credited DiNardo’s confession with implicating Kratz and leading investigators to Patrick’s body, which had been buried separately from the others.  “I’d like to think he wanted to help us get these boys home,” he said, describing the cooperation agreement with DiNardo as critical to solving the case.

In interviews Friday, several legal experts agreed.  “It was absolutely the right thing to do,” Jack McMahon, a former prosecutor who is now a prominent defense lawyer, said of the deal.  “I think both sides did the right thing.”  With evidence mounting in a case this serious, McMahon said, “the defense probably realized that the evidence against his client was pretty overwhelming.  He had only one chip to play, and he used it to leverage for a life sentence.”

Marc Bookman, a former public defender who is director of the Atlantic Center for Capital Representation in Center City, said the agreement had clear benefits for DiNardo and for prosecutors.  “In a case like this, there’s a give and take,” he said.  For the defense, Bookman said, “you’ve got four bodies.  Any defense lawyer is thinking, ‘There’s no real defense to the killing of four people.’ There are defenses to a murder case, but it’s difficult to conceive of a legitimate defense to four bodies buried 12 feet in the ground.”

The severity of the crime made it a clear candidate for a death penalty prosecution, legal experts agreed, giving the prosecution leverage and the defense reason to seek a deal.  “The defense is giving the prosecutor something compelling,” Bookman said.  “He said he would direct them to where the bodies are. You’ve got four grieving families who desperately want closure, however sad that closure might be.  And he’s asking for something in exchange.”

For prosecutors, the threat of life on death row — if not actual execution in a state with a moratorium on the death penalty — upon conviction proved persuasive.  “It’s good to have the death penalty for cases like this — whether you agree with it or not,” said former Philadelphia District Attorney Lynne M. Abraham, whose tenure was marked by an aggressive willingness to pursue the death penalty in murder cases.  “The prosecutor had a bargaining chip, and the defense attorney used it to bargain away [the possibility of] being on death row for 25 to 40 years.”...

The deal DiNardo’s lawyers reached with prosecutors spares the families of the four victims a painful trial and saves taxpayers the expense.  In addition, Abraham said, it saves “hundreds of thousands, if not millions” of dollars spent on the appeals offered to all defendants convicted in capital cases.  Those often go on for decades.

Dennis J. Cogan, a former prosecutor and veteran defense lawyer, called the agreement a “win-win.” Without the confession, he said, the crime might have proved a “tough case” for prosecutors.  With the deal Weintraub struck with DiNardo’s lawyers, Cogan said, “they get the guy, they get the accomplice, and hopefully they bring closure for the families.”

July 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Friday, July 14, 2017

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

July 14, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, July 11, 2017

"It’s time to refocus the punishment paradigm"

The title of this post is the headline of this notable new commentary in The Hill authored by Adam Gelb and Barbara Broderick. Here are excerpts:

[O]ne of the most powerful findings in criminology is that rewards are better shapers of behavior than punishments. But that’s not typically how it works for the 4.7 million Americans on probation or parole, the community supervision programs founded for the purpose of redirecting troubled lives.

Instead, supervision has become mostly about enforcing the rules — report to your probation officer, attend treatment, etc. — and locking people up when they don’t obey.  Corrections professionals call it “Trail ’em, nail ’em, and jail ’em.”

People who commit crimes need to be held accountable for their actions, of course, but the criminal justice system serves a much wider purpose: protecting public safety.  In order to cut crime and recidivism rates — and rein in corrections spending — we need to harness what the research says about changing behavior.  That means refocusing the punishment model and making the primary mission of supervision to promote success, not just punish failure.

This fundamental transformation is one of a set of proposed paradigm shifts in community corrections highlighted in a report set to be released later this month from Harvard’s Kennedy School of Government and the National Institute of Justice — the product of three years of discussions among leading experts in criminal justice, of which we were a part.

Our group sought to identify strategies for probation, parole, and other programs that can both promote public safety and build trust between communities and justice institutions.  Other shifts include moving from mass to targeted supervision, concentrating resources on more serious offenders, and swapping intuition-based policies for evidence-based practices (such as focusing treatment on changing characteristics that contribute to offending, like poor impulse control, and avoiding those that don’t.)

Making supervision more reward-based holds great potential.  A probation officer’s job has traditionally been defined as reactive: wait until something bad happens and then impose a sanction, often a return to prison. This not only costs state taxpayers an average of $30,000 per year for each inmate, it also ignores a good part of what we know works best when it comes to steering ex-offenders away from continued criminality....

Drug courts have helped pioneer reward-based practices by holding graduation ceremonies to commemorate program completion.  Many graduates say it’s the first time in their lives that they’ve achieved something and been publicly acknowledged for it, and studies suggest that this type of recognition inspires them to persist in their sobriety.

Such ceremonies shouldn’t be limited to specialized courts or programs, which handle only a small fraction of the millions of people on community supervision.  They should be expanded and accompanied by other rewards for progress along the way.  Local communities and businesses can chip in with small gift cards and other tokens of recognition.

At least 15 states have passed laws that establish “earned compliance credits,” which typically permit offenders to earn a month off of their supervision terms for each month that they’re in compliance.  This tactic could be expanded and used in new ways.  For instance, for each month they obey the rules, parolees or probationers could have a reduction or elimination of the monthly fee (typically about $50) that they’re required to pay.

Another potentially promising method would capture the power of social media to push positive messages to probationers and parolees when they do well.  Pass a drug test, complete a phase of treatment, or get a job — and you’d receive a batch of digital pats on the back from your treatment team and circle of family and friends.

It’s human instinct to punish wrongdoing, and accountability won’t — and shouldn’t — vanish from the criminal justice system.  We can’t just reward people when they do right but fail to respond when they do wrong. But by shifting the emphasis from retribution to rewards, we can make a greater impact on behavior.

July 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Latest comments by AG Sessions on drug problems and federal prosecutorial policies

Attorney General Jeff Sessions spoke today at the 30th DARE Training Conference, and the setting not surprisingly prompted him to talk about drug issues and federal prosecutorial policies. His official remarks are available at this link, and here are excerpts:

Drug abuse has become an epidemic in this country today, taking an unprecedented number of American lives.  For Americans under the age of 50, drug overdoses are now the leading cause of death. In 2015, more than 52,000 Americans lost their lives to drug overdoses — 1,000 every week.  More died of drug overdoses in 2015 than died from car crashes or died at the height of the AIDS epidemic.

And the numbers we have for 2016 show another increase — a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug overdoses last year.  That will be the highest drug death toll and the fastest increase in the death toll in American history.  And every day, more than 5,000 Americans abuse painkillers for the first time.

This epidemic is only growing.  It’s only getting worse.  It’s being driven primarily by opioids — prescription drugs, heroin, and synthetic drugs like fentanyl.  Last year, there were 1.3 million hospital visits in the United States because of these drugs.  According to the Centers for Disease Control and Prevention, heroin use has doubled in the last decade among young people 18 to 25....

Now, this is not this country’s first drug abuse crisis.  In the 1980s, when I was a federal prosecutor, we confronted skyrocketing drug abuse rates across the country and we were successful.  In 1980, half of our high school seniors admitted they had used an illegal drug sometime in that year.  But through enforcing our laws and by developing effective prevention strategies, we steadily brought those rates down.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles.  I believe that DARE was instrumental to our success by educating children on the dangers of drug use.  I firmly believe that you have saved lives. And I want to say thank you for that.  Whenever I ask adults around age 30 about prevention, they always mention the DARE program.  Your efforts work.  Lives and futures are saved.

Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse.  They say marijuana use can prevent addiction.  They say the answer is only treatment.  They say don’t talk about enforcement.  To me, that just doesn’t make any sense.  In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.

Ignoring the problem — or the seriousness of the problem — won’t make it go away.  Prevention — through educating people about the danger of drugs — is ultimately how we’re going to end the drug epidemic for the long term. Treatment is important, but treatment often comes too late.  By then, people have already suffered from the effects of drugs.  Then their struggle to overcome addiction can be a long process — and it can fail.  I have seen families spend all their savings and retirement money on treatment programs for their children — just to see these programs fail.

Now, law enforcement is prevention.  And at the Department of Justice, we are working keep drugs out of our country to reduce availability, to drive up its price, and to reduce its purity and addictiveness.  We know drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.  There is no doubt that violence tends to rise with increased drug dealing.

Under the previous administration, the Department of Justice told federal prosecutors not to include in charging documents the full amount of drugs being dealt when the actual amount would trigger a mandatory minimum sentence.  Prosecutors were required to leave out true facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb “mass incarceration” of “low-level offenders”, but in reality it covered offenders apprehended with large quantities of dangerous drugs.

What was the result?  It was exactly what you would think: sentences went down and crime went up.  Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016.  Violent crime — which had been decreasing for two decades — suddenly went up again.  Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

In May, after study and discussion with criminal justice experts, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that said we were going to trust our prosecutors again and allow them to honestly charge offenses as Congress intended.  This simple two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case, and allows them to exercise discretion where a strict application of the law would result in an injustice.  Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate.  That is the way good law enforcement has always worked.

But you know it’s not our privileged communities that suffer the most from crime and violence.  Minority communities are disproportionately impacted by violent drug trafficking and addiction.  Poor neighborhoods are too often ignored in these conversations.

Regardless of their level of wealth or their race, every American has the right to live in a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American community is ravaged by crime and violence at the hands of drug traffickers.  We can never yield sovereignty over a single neighborhood, city block, or street corner to drug traffickers....

Experience has shown, sadly, that it is not enough that dangerous drugs are illegal.  We also have to make them unacceptable.  We have to create a cultural climate that is hostile to drug abuse. In recent years, government officials were sending mixed messages about drugs.  We need to send a clear message.  We must have Drug Abuse Resistance Education.  DARE is the best remembered anti-drug program. I am proud of your work.  It has played a key role in saving thousands of lives and futures.

So please — continue to let your voices be heard.  I promise you that I will let my voice be heard.  Our young people must understand that drugs are dangerous; that drugs will destroy their lives, or worse yet, end them.  Let’s get the truth out there and prevent new addictions and new tragedies — and make all of our communities safer.  Thank you.

July 11, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, July 08, 2017

"Criminal justice reform starts before the trial and sentence"

The title of this post is the title of this new commentary at The Hill authored by Marc Levin and Ed Chung. Here are excerpts (with links from the original): 

Recent media stories have speculated on the future of federal efforts to reform the criminal justice system. Much of the discussion surrounds the possibility of rekindling bipartisan sentencing and corrections reform legislation that was on the cusp of being enacted in the previous Congress.

While comprehensive reforms to lower federal mandatory minimum sentences remain aspirational, there are other policies on which the right and left agree that could have as much, if not more, impact in reducing the nation’s incarcerated population while maintaining public safety. 

Every day, approximately 450,000 people who have not been convicted of a crime are currently behind bars while they await adjudication of their case.  This is more than double the number of people in federal prison and two and half times the total jail population in 1980.  According to a recent analysis by the Prison Policy Initiative, “99 percent of the growth in jails over the last 15 years has been a result of increases in the pre-trial population.”  This increase was not due to a more criminalized or violent society but rather stemmed from discretionary criminal justice policies that increasingly conditioned release from jail on whether they could pay for bail. 

Money bail systems, however, are neither the most effective nor fairest way to achieve the goals of the justice system prior to trial.  For those whom a court determines to be a danger to society, allowing them to pay for their release seems like an illogical remedy where a rich dangerous person is freed but a poor dangerous person remains in jail. And, to ensure a person returns for court appearances, more effective methods have developed in recent years that combine an objective assessment of a person’s risks with appropriate human supervision and electronic monitoring.

The harms and inequities associated with money bail systems — especially when it comes to nonviolent, low-risk poor defendants — are well documented.  According to an analysis by the Arnold Foundation, keeping low-risk defendants in jail for even two or three days increases the likelihood that they will commit a new crime by 40 percent.  The impact also is felt disproportionately by those who cannot pay for even relatively modest bail and thus remain locked up.

The movement to reform bail systems has taken root in a small but growing number of both conservative and progressive states.  Connecticut last month enacted a statute that bars the imposition of financial conditions for pretrial release for most misdemeanors.  Earlier this year, New Jersey passed legislation that eliminated bail for minor crimes and instituted the use of a risk assessment tool to help courts determine pretrial supervision conditions.  Kentucky, which instituted the same risk assessment tool in 2013, will now automatically release people determined to be low-risk if they meet certain criteria.  And Washington, D.C., releases 90 percent of those arrested with conditions to report to a pretrial agency and comply with drug testing and other requirements. 

While state and local policy change is the primary means of achieving bail reform, given that pretrial detention implicates the guarantees of equal protection and due process found in the U.S. Constitution, the federal government can play a collaborative role, even if most of the people in jail awaiting trial are in local facilities.  Through its technical assistance efforts, the Department of Justice (DOJ) shares advancements made in a small number of states with a national audience and provides valuable data that reveals the impact of pretrial practices across the nation. From issuing statements of interest on bail in pending federal litigation to providing guidance on the proper use of risk assessment instruments, the DOJ must remain committed to pretrial policies that prioritize public safety over a person’s ability to pay.

Congress also has an important voice that can exemplify the bipartisan support for bail reform across the country.  The legislative branch’s bully pulpit is especially effective when emphasizing points of agreement across the political spectrum....

There is still much work to be done to reform the criminal justice system.  Fortunately, this remains a priority that transcends partisanship, even in the current political climate. It is time for our national leaders to act on the consensus developed among states, local communities, advocates, and think tanks representing different ideological perspectives like ours. 

July 8, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 06, 2017

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 05, 2017

Divided California Supreme Court decides Prop 47 did not alter rules for retroactivity of Prop 36 three-strikes reform

As reported in this Los Angeles Times article, headlined "California Supreme Court makes it harder for three-strike prisoners to get sentence reductions," earlier this week the top court in California divided over the resolution of an intricate and interesting retroactivity question. Here are the details:

Judges have broad authority in refusing to lighten the sentences of “three-strike” inmates, despite recent ballot measures aimed at reducing the state’s prison population, the California Supreme Court ruled Monday. In a 4-3 decision, the court said judges may freely decline to trim sentences for inmates who qualify for reductions under a 2012 ballot measure intended to reform the state’s tough three-strikes sentencing law.

Justice Leondra R. Kruger, an appointee of Gov. Jerry Brown, joined the more conservative justices to reach the result. The decision aimed to resolve questions posed by two ballot measures in recent years to reduce the population of the state’s overburdened prison system.

Proposition 36 allowed three-strike inmates to obtain sentence reductions if their third strike was neither serious nor violent. Judges were entitled to refuse a reduction if they believed the inmate posed an “unreasonable risk of danger to public safety.” They could consider the inmate’s history, disciplinary record in prison or other evidence.

Two years later, voters passed another ballot measure to reduce the prison population.  That measure, Proposition 47, created a definition of a safety risk that judges were required to apply.  Inmates could be denied a sentence reduction only if they were deemed to pose an unreasonable risk of committing certain crimes, including a killing, a sexually violent offense, child molestation or other serious or violent felony punishable by life in prison or the death penalty.

The court majority, led by Chief Justice Tani Cantil-Sakauye, said Monday that definition did not apply to three-strikers, who have been sentenced to 25 years to life for repeated crimes.  If it had, Cantil-Sakauye wrote, it would “result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36.”

Cantil-Sakauye noted that none of the ballot materials for Proposition 47 mentioned that it would affect three-strike prisoners. Proposition 47 allowed judges to reduce some nonviolent felonies to misdemeanors.  “Based on the analysis and summary they prepared, there is no indication that the Legislative Analyst or the Attorney General were even aware that the measure might amend the resentencing criteria governing the Three Strikes Reform Act,” the chief justice wrote.

The ruling came in appeals filed by David J. Valencia and Clifford Paul Chaney, who were both sentenced to 25 years to life under the three strikes law and both eligible for reduced terms under Proposition 36. Valencia’s criminal history included kidnapping, making criminal threats and striking his wife.  Chaney’s record included armed robbery and three convictions for driving under the influence....

Justice Kathryn Mickle Werdegar and Brown’s two other appointees — Justices Goodwin Liu and Mariano-Florentino Cuéllar — noted in dissents that Proposition 47 clearly stated that the definition would apply throughout the criminal code.  The more restrictive definition advanced “the goal of concentrating state corrections spending on the most dangerous offenders,” Cuéllar wrote, and gave three-strike prisoners only “a marginally stronger basis” for winning sentence reductions.

Liu said the court majority had concluded “that the drafters of Proposition 47 pulled a fast one on an uninformed public.” But it is also possible that voters, unhappy about the huge amounts of money being spent on prisons, “knew exactly what they were doing,” Liu wrote.  Monday’s ruling “disserves the initiative process, the inmates who are now its beneficiaries, and the judicial role itself,” he said.

The full 110-page(!) opinion in this case is available at this link.

July 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, July 04, 2017

"Impeachable Offenses? The Case for Removal of the 45th President of the United States"

The title of this post is the title of this notable new blog created by former federal prosecutor and sentencing guru Professor Frank Bowman. Frank sent a note about the blog around a criminal law professor listserve yesterday, and I thought sharing that note today was, in a nerdy-law-professor way, kind of patriotic. So here is a bit of what Frank had to say about his new blog:

I propose to discuss, as dispassionately as possible, the case for impeachment of Mr. Trump. An actual impeachment is, as I’m sure you’d agree, a highly unlikely event.  But the prospect is talked about constantly, so I thought I’d try to create a resource for careful examination of all aspects of the question. I hope to make it a combination of (1) sources for those really interested in the subject, (2) quick-hit posts of links to other articles by other authors discussing impeachment, and (3) a growing series of essays by me, perhaps some of my students, and maybe other contributors on aspects of the impeachment problem.

Although it is a work in progress, I now have enough content on the site that I feel comfortable in telling people about it. I am in the midst of a series of posts analyzing the case for criminal obstruction of justice against Mr. Trump. See, e.g., this posting. In it, I discuss the views of Eric Posner, Daniel Hemel, Randall Eliason, Alan Dershowitz, and others. Professor Dershowitz has been kind enough to respond to my remarks on his position, and I’ve posted a rejoinder.

July 4, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Monday, July 03, 2017

Highlighting Justice Gorsuch's interesting concurrence in Hicks on the perils of permitting sentencing error to persist

Adam Liptak has this effective new article in the New York Times about the effectiveness of the new Justice on the Supreme Court, Neil Gorsuch. The article is headlined "Confident and Assertive, Gorsuch Hurries to Make His Mark," and it develops the point that Justice Gorsuch's "early opinions were remarkably self-assured." The article and that line reminded me that I have been meaning to highlight Justice Gorsuch's remarkable little concurrence on the final day of the term in the Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here).

Hicks is a quirky case in a quirky posture after the defendant was sentenced under the wrong crack sentencing law during the transitional uncertainty after the passage of the Fair Sentencing Act. The government admits in its briefing to SCOTUS that Hicks' 20-year mandatory-minimum sentence was legally erroneous, but the government asked SCOTUS to remand the case to the Fifth Circuit to conduct the full plain error analysis. The Supreme Court did just that via a short order, but the Chief Justice joined by Justice Thomas dissented with a short opinion suggesting that SCOTUS should make a plain error decision before being willing to vacate the judgment below. This dissent, it seems, prompted Judge Gorsuch to want to defend the Court's action and in so doing he had a lot of interesting things to say. These passages from the end of his concurrence in particular caught my attention:

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute.  No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome.  Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U.S.C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.  So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated.  Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016).  When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success.  For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?  Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).

Now this Court has no obligation to rove about looking for errors to correct in every case in this large country, and I agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911–913 (2008), suggesting caution..... But, respectfully, I am unaware of any such reason here.  Besides, if the only remaining objection to vacating the judgment here is that, despite our precedent routinely permitting the practice, we should be wary of remanding a case without first deciding for ourselves the latter elements of the plain error test, that task is so easily done that in this case that I cannot think why it should not be done. Indeed, the lone peril in the present case seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.

Based on Justice Gorsuch's votes in a few other criminal cases, early indications suggest that he is far more often going to vote in favor of the government rather than in favor of criminal defendants across the range of criminal law and procedure cases.  But his decision to write separately in this little case to push back at the dissenters here with this particular language leads me to wonder if Justice Gorsuch (like the Justice he replaced) might prove to be an especially interesting and unpredictable vote and voice in federal sentencing cases in particular.

July 3, 2017 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, July 02, 2017

Reviewing what Hurst has come to mean for the death penalty in Florida

This new Miami Herald article, headlined "There are fewer murderers on Florida’s Death Row but not because of executions," reports on the enduring echo effects of the Supreme Court's most significant capital punishment ruling in recent years. Here is how the article gets started:

The full impact of a historic U.S. Supreme Court ruling on Florida’s death penalty system is finally emerging as the state’s Death Row population is smaller than it was more than a decade ago and will keep shrinking for a long time.

Florida has not executed an inmate in 18 months. No inmates haves been sent to Death Row in more than a year, a sign that prosecutors are not trying as many first-degree murder cases because of uncertainties in the sentencing system.

“There is no reason to sign a death warrant if you know it’s going to get delayed,” said State Attorney Bernie McCabe, the top prosecutor in Pinellas and Pasco counties. “I think judges are reluctant to if they don’t know what the rules are.”

Florida’s Death Row population now stands at 362, according to the Department of Corrections web site. That’s the lowest number since 2004; only a year ago, the population was 389.

Many more cells on Death Row are certain to be emptied as the Florida Supreme Court continues to vacate death sentences because they violate a 2016 U.S. Supreme Court decision known as Hurst v. Florida.  The case struck down the state’s death penalty sentencing system because it limited jurors to an advisory role, a violation of the Sixth Amendment right to a trial by jury.

In four new cases, the state’s high court upheld first-degree murder convictions Thursday but ordered that all four defendants must be resentenced because of the Hurst decision, a step that could spare any or all of them a trip to the execution chamber.

One of the four, John Sexton, was convicted of the brutal 2010 Pasco County slaying of Ann Parlato, a 94-year-old woman who lived alone. The jury that convicted Sexton recommend his execution by a vote of 10 to 2, a split decision that justices said Thursday is a violation of the Hurst decision.  Justices also lifted the death sentence of Tiffany Ann Cole, convicted of burying a couple alive in Jacksonville.  She’s one of three women on Death Row.

Legal experts say that in all, up to 150 death sentences could be reversed or be sent back to trial courts for resentencing hearings in other cases in which the jury’s recommendation of a death sentence was not unanimous. Those penalty phase hearings will strain the limited resources of prosecutors and public defenders, who must scramble to find old trial transcripts and witnesses and must empanel new juries.  “I’ll use one word: ‘chaos,’ ” said retired Supreme Court Justice Gerald Kogan of Miami. “It’s just a mess.”

Scott Sundby, a law professor at the University of Miami, said the impact on the criminal justice system will be significant.  “It essentially means that every new penalty phase is going to have to be re-investigated and presented in full,” Sundby said.  “There will not be an ability to simply rely on the prior penalty phase.”

July 2, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Saturday, July 01, 2017

Amish farmer sentenced to six year in federal prison for regulatory offenses and obstruction

GirodpictureThis local article reports on a notable federal sentencing that seemed driven, at least in part, by the defendant's disinclination to respect the federal government. The article is headlined "Amish farmer sold herbal health products. He’s going to prison for 6 years." Here are some of the details:

An Amish man was sentenced Friday to six years in prison for obstructing a federal agency and for making and selling herbal health products that were not adequately labeled as required by federal law. Samuel A. Girod of Bath County, a member of the Old Order Amish faith, was convicted in March on 13 charges, including threatening a person in an attempt to stop him from providing information to a grand jury.

U.S. District Judge Danny Reeves repeatedly asked Girod in court if he wished to make a statement but Girod refused. Girod, who represented himself, does not acknowledge that the court has jurisdiction. “I do not waive my immunity to this court,” Girod told the judge. “I do not consent.”

Girod has become a cause for some who see him as a victim of the federal government. More than 27,000 people have signed an online petition seeking to have him released from jail. About 75 supporters of Girod, including many Amish, gathered near the federal courthouse on Barr Street in downtown Lexington before and after the sentencing.

“We still have a country where people still come together to help each other,” said Emanuel Schlabach, 27, an Amish man from Logan County. As assistant U.S. attorneys left the courthouse after the sentencing, Girod supporters jeered them. “Shame on you!” shouted one supporter.

One non-Amish supporter, Richard Mack of Arizona, said after the sentencing that, “This is a national disgrace and outrage. ... He is being punished for being stubborn.” Mack, a former Arizona sheriff and political activist, said he and others will ask President Donald Trump to issue a pardon to Girod. Mack said he has used Girod’s chickweed salve with no ill effects.

Girod operated a business in Bath County that made products to be used for skin disorders, sinus infections and cancer. One product called TO-MOR-GONE contained an extract of bloodroot that had a caustic, corrosive effect on human skin, according to an indictment.

A federal court in Missouri had barred Girod from distributing the products until he met certain conditions, including letting the U.S. Food and Drug Administration inspect his business. But when two agents tried to inspect the plant in November 2013, Girod and others blocked them and made them leave, the indictment charged. Federal prosecutors said in a sentencing memorandum that Girod knowingly and intentionally sold misbranded products to customers and did not tell any of them about the injunction.

At trial, customers testified that they would not have purchased his products if they had known about the injunction. Girod argued that his products weren’t subject to Federal Drug Administration oversight because they were herbal remedies, not drugs. He also argued that requiring FDA approval of his products infringed on his religious freedom. Old Order Amish seek to insulate themselves from the modern world, including modern pharmaceuticals, he said.

Federal jurors rejected Girod’s defense, convicting him of conspiring to impede federal officers; obstructing a proceeding before a federal agency; failing to register with the FDA as required; tampering with a witness; failing to appear before a hearing; and distributing misbranded drugs....

In documents filed June 19, Girod argued that the charges in the indictment “do not apply to me.” “I am not a creation of state/government, as such I am not within its jurisdiction,” Girod wrote. He added later: “The proceedings of the ‘United States District Court’ cannot be applied within the jurisdiction of the ‘State of Kentucky.’”

Girod’s supporters outside the courthouse said his case is an example of overreach by the federal government. “I don’t need the FDA to protect me from an Amish farmer,” read a sign held by T.J. Roberts, a Transylvania University student from Boone County. “I feel what happened here is an example of judges making the law,” Roberts said. “What the FDA did here is an example of executive overreach in which they are choosing what Americans can put in or on their own bodies. I struggle to find where the victim is in this and where the crime was committed.”

But Judge Reeves said Girod brought the trouble on himself “because he steadfastly refused to follow the law.” To Girod, Reeves said, “You refused to follow anyone but yourself.”

I always have a negative reaction to any use of prison time in response to what seem like non-violent regulatory offenses by a person who would appear to present no genuine threat to public safety.  And this case especially caught my eye not only because a lot of federal prison time was imposed, but also because this critical report about the sentencing from a political blog indicates that the applicable federal guideline range here was 63-78 months.  In other words, the sentencing judge here though the defendant needed and deserved a sentence significantly above the bottom of the applicable guideline range in this case.  Also of note, the judge who decided a six year prison term was necessary in this case, U.S. District Judge Danny Reeves, happens to be the newest member of the US Sentencing Commission.

July 1, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (27)

Friday, June 30, 2017

"Examining Racial Disparities in Criminal Case Outcomes among Indigent Defendants in San Francisco"

The title of this post is the title of this interesting big new report published by the Quattrone Center for the Fair Administration of Justice.  This Crime Report piece about the report provides this overview of its findings:

An individual’s race and ethnic background determine how he is treated at the “front end” of the criminal justice system, according to a study published this week.  The study, which, focused on poor African-American, Latino and white defendants (all male) in San Francisco, found what it called “systematic differences” in outcomes during the preliminary steps of an individual’s involvement in the justice system, from arrest and booking to the pretrial phase.

“Defendants of color are more likely to be held in custody during their cases, which tend to take longer than the cases of White defendants,” said the study, published by the Quattrone Center for the Fair Administration of Justice.  “Their felony charges are less likely to be reduced, and misdemeanor charges (are) more likely to be increased during the plea bargaining process, meaning that they are convicted of more serious crimes than similarly situated White defendants.”

The study’s conclusions added a troubling dimension to existing research on racial disparities in the U.S. justice system which has largely concentrated on “final case outcomes,” such as conviction, incarceration and sentence length.  In California, for example, African-American men are incarcerated at 10 times the incarceration rate of white men, five times the incarceration rate of Latino men, and 100 times the incarceration rate of Asian men, according to figures cited by the study.

But the study authors’ examination of more than 10,000 records of cases between 2011 and 2014 provided by the San Francisco Public Defender’s Office challenged the notion that the difference is explained simply by the fact that African-Americans or Hispanics commit more crimes than other groups.  Their findings suggest that whites are in fact treated more leniently when they are apprehended during the early stages of their involvement in the justice system, thus making them less likely to end up with prison terms in the first place.

The full report linked above runs more than 100 pages, but the Quattrone Center webisite has this shorter summary version.

June 30, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)