Monday, September 26, 2016

Looking at the impact of SCOTUS Johnson ruling in the heart of the state in the heart of it all

I live in the center of a state that sometimes uses the tourism slogan "Ohio, The Heart of It All."  Though some might dicker with the formal accuracy of this sloganeering, there is little basis to resist the claim that Ohio is a bellwether state, and that reality makes extra interesting this new Columbus Dispatch article about the impact of the most consequential of Supreme Court sentencing rulings in recent years.  The piece is headlined "U.S. Supreme Court ruling on sentencing law could free hundreds in Ohio," and here are excerpts:

Celia Ward has the menu planned for her son’s welcome-home dinner: fried chicken, cabbage, cornbread and mac and cheese. It’s been a while since Hozae Rodriguez Ward, 39, sat down at his mother’s table.

From 1995 to 2007, he was in the county jail and state prison. Since 2009, he has been in federal prison.  But according to the U.S. Supreme Court, he should have been home five years ago.  Ward is eligible for immediate release after the high court ruled on June 25, 2015, that the Armed Career Criminal Act, under which Ward was sentenced, was too vague.

The ruling probably affects many more than just Ward.  The federal public defender’s office in Cincinnati is conducting an “initial” review of 400 federal inmates sentenced under the act to see if they, too, have been in prison too long.  The office covers only the Southern District of Ohio.  The total number of inmates affected nationwide is unknown, but there are 89 district courts in the 50 states, including two in Ohio.

On Wednesday in Columbus, U.S. District Judge Michael H. Watson ordered Ward’s release, which should occur within 30 days.  Watson sentenced Ward on June 30, 2009, to the minimum mandatory term of 15 years after he pleaded guilty to being a felon in possession of ammunition. “No one is terribly comfortable with that, given your previous record,” Watson said.  “Nonetheless, you’ve served more than twice the guideline range, as recalculated.”  The defense and prosecution agreed that, based on the high court’s ruling, Ward’s maximum sentence should have been 27 months.

The Armed Career Criminal Act imposed a mandatory minimum 15-year prison sentence on felons convicted of a firearm offense who had three previous convictions for violent felonies or serious drug offenses.  The act defined those violent felonies as burglary, arson, extortion and those involving the use of explosives.  The problem, the justices wrote in Johnson v. United States, is that the act continued to add a broad “residual clause” that included crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”  The court ruled that the residual clause violated the Fifth Amendment’s due-process provision because it was too vague and “invites arbitrary enforcement” by judges....

“We’ve had numerous folks who have walked out the Bureau of Prison door,” said Kevin Schad, appellate director for the federal public defender’s office for the Southern District of Ohio.  In addition to his office’s 400 cases, others are being reviewed by attorneys appointed by the court to help, said Schad, who filed the motion in Ward’s sentencing....

Schad said the number of inmates affected by the ruling might grow.  The Supreme Court has agreed to hear an outgrowth of Johnson v. United States.  The petitioners in Beckles v. United States argue that a similarly vague clause exists in other enhanced-sentencing guidelines.  “That opened up a whole number of other cases,” Schad said. 

September 26, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Sunday, September 25, 2016

"The Under-Policed"

The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.

Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?

Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice?  If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed?  Finally, how might those conversations impact the issue du jour, mass incarceration?  This essay concludes by offering some suggestions for reducing mass incarceration.

September 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (14)

Saturday, September 24, 2016

"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"

The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.”  Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so.  In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

September 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act

Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward.  Here are the details:

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.

September 24, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, September 22, 2016

"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"

The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):

This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.

In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.

As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, September 21, 2016

"Assessing Time Served" and the deeply under-theorized problems of criminal history

Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served."  Here is the abstract (which will be followed by a few comments I have about this topic):

This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct.  While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.

The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime.  Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released.  Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.

Real problems, however, lurk just below the surface.  The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees.  It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.

This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history.  Moreover, as the title of this post hints,  I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.)  In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.

September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, September 20, 2016

"The Constitutional Right to Collateral Post-Conviction Review"

The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching.  To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise.  In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims.  The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims.  Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking.  Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."

September 20, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"

Td2The title of this post is the title of this notable new lengthy report produced by the Texas Defender Service.  The start of this news release provides an overview of the report's contents:

Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service.  The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken.  The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.  The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal.  The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal.  TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

September 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Do animal abuser registries make more or less sense than sex offender registries?

The question in the title of this post is prompted by this recent Washington Post piece headlined "Animal abusers are being registered like sex offenders in these jurisdictions." Here are excerpts:

Starting in November, convicted animal abusers in the county that includes Tampa will be easier to identify. Their names, photos and addresses will be published on a county-run website that is publicly searchable and similar to the online sex offender registries that have proliferated since the 1990s.

The animal abuser registry, passed last week by commissioners in Hillsborough County, is aimed at preventing people who have harmed animals from doing so again.  Retailers and shelters will be required to have prospective pet adopters or purchasers sign an affidavit saying they’re not on the registry.  Regular people seeking pet-sitters or new homes for their animals will be able to vet candidates. Law enforcement officials will, at least in theory, be able to keep tabs on offenders’ whereabouts.

The county is the latest in a tiny but growing group of U.S. jurisdictions to adopt such registries.  A handful of New York counties have them, as does New York City, although that one isn’t accessible to the public. Cook County, Ill., whose county seat is Chicago, recently decided to create one. Tennessee started the first statewide registry in January, although it still has just three people on its list.

“Just as we place extra trust in teachers and law enforcement, so, too, should we ensure that those engaged in the handling of animals have a spotless record,” New Jersey state Rep. Troy Singleton (D) said about legislation he sponsored to make his state home to the second statewide animal abuse registry. He referred to the idea as a “first line of defense.”

The registries are part of widening efforts in the United States to punish and track animal abusers, who, research has shown, commit violence against people at higher rates than normal. All 50 states now have felony provisions for the gravest crimes against animals, although many offenses are still considered misdemeanors. The FBI has added animal cruelty to its list of Class A felonies, and this year began collecting data for such crimes the way it does for other serious offenses, including homicide.

“Most owners consider their pets to be family members,” Kevin Beckner, the Hillsborough County commissioner who pushed for the registry, said in a statement.  “This Registry not only protects animals, but it can identify — and maybe even prevent — violence against humans, too.”

The registries have several limitations. For one thing, they’re local, not national, so a person with an animal cruelty record in Tampa wouldn’t be stopped from getting a cat in Miami. Most require the cooperation of offenders themselves, requiring them to register or face a fine.

And the tool is not without its detractors — some of whom include animal advocates.  The chair of the Hillsborough County’s Animal Advisory Committee called the registry there “not sufficient at all,” according to the Tampa Bay Times.  Retailers have protested the idea of putting salespeople in the position of saying no to potentially violent customers whose names pop up in an online search.  That concern led the Florida county to require stores and adoption shelters to procure only an affidavit, which can be checked against the registry — and passed along to authorities if there’s a match — after the customer leaves. But it has been dismissed elsewhere....

Among the skeptics is the Humane Society of the United States, whose president and chief executive, Wayne Pacelle, wrote in 2010 that the “overwhelming proportion of animal abuse is perpetrated by people who neglect their own animals” and are unlikely to commit violence against other people and pets.  “Such individuals would pose a lesser threat to animals in the future if they received comprehensive mental health counseling,” Pacelle wrote at the time.  “Shaming them with a public Internet profile is unlikely to affect their future behavior — except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”

A few prior related posts:

September 20, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Friday, September 16, 2016

"What crimes warrant the death penalty? Depends on the prosecutor"

The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:

If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently.  Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.

To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire.  Murder to silence a witness.  Killing a police officer.  Wrecking a train.  Using poison.  Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes.  And on and on.

Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty?  A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it).  A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent.  National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play.  In fact, 2% of counties nationwide account for a majority of death sentences.

How inconsistent is application of the death penalty?  From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each.  Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County?  No.  The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.

Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced.  Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants.  So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.

Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside).  Yet that is one of the many grave flaws of capital punishment in general, and in California specifically.  Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made.  It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.

September 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

"Clarity in Criminal Law"

The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:

Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code.  Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe.  Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.

This Article suggests what that reaction should be.  It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine.  Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.

September 16, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

091416-Obama-commutations-online_1USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."

September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, September 15, 2016

Interesting (and already dated) census of problem-solving courts from BJS

The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS": „„

September 15, 2016 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"

The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:

Criminal justice debt has aggressively metastasized throughout the criminal system.  A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections.  As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.

Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury.  This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem.  The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.

September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, September 13, 2016

Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett

As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court.  Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc.  (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)

The actual order denying en banc review is only one-sentence long.  But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates.  Highly recommended reading for all sentencing fans and law nerds.

September 13, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, September 12, 2016

Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"

Petro_OHflag_BG_0_0Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:

As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.

My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.

Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.

In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.

It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.

The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....

Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.

Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.

Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.

I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.

The lengthy new report referenced by former AG Petro, which was authored by Ohioans to Stop Executions and titled “A Relic of the Past: Ohio’s Dwindling Death Penalty,” is available at this link.

September 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

"Does the Supreme Court still believe in prosecutorial discretion?"

The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....

In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....

[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound.  The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions.  One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well.  If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.

September 12, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults

The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court.  (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.)  The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:

In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system.  In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision.  In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.

Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried.  It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent.  In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.

“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice.  She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.

But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.

California has worked in earnest in recent years to provide judges more guidance on those fitness criteria.  Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court.  Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”

“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney.  “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.”  But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.

September 12, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, September 10, 2016

Great coverage of awful public defender realities, especially in Louisiana

The Guardian together with the Marshall Project hace done this past week a remarkable series on the remarkable shortage of public defenders in Louisiana. The series is all linked here via The Guardian, under the title "Justice Denied," and with videos and this brief general description: "A three-part series in partnership with the Marshall Project that examines the crisis of America's overburdened public defense systems, including a special report from Louisiana, where years of cuts and inconsistent funding have hit hardest." Here are the full headlines and links to the three parts of the series:

Here are snippets from the first of these articles highlighting why we ought not expect improvements to public defender systems anytime soon:

In recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a manifestly unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform, but in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense.  Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.

Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association, state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200bn spent on criminal justice by states and local government every year. The depth of crisis varies in each state, indicative of the complex patchwork of defense systems that are funded and administered differently dependent on jurisdiction....

Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and her predecessor, Eric Holder, the issue remains intractable.  Congressional bills offering defender’s offices easier access to federal grant money have gone nowhere.

And in an election year during which Hillary Clinton has explicitly promised to “reform our criminal justice system from end to end”, dealing with the crisis in funding defense of the poorest people coming before the courts does not feature on her platform for change.  Donald Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes no further than a vow to appoint “the best prosecutors and law enforcement officials in the country”.

September 10, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"

The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:

The constitutional pardon power has generated more controversy than mercy over the past three decades.  Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards.  While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process.  For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.

September 10, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, September 09, 2016

DOJ, wisely in my view, decides to drop prosecution against former Virginia gov Bob McDonnell and his wife

As reported in this Reuters article, "U.S. prosecutors on Thursday dropped corruption charges against former Virginia Governor Robert McDonnell and his wife, bringing to a close a case that tarnished the once-rising star of the Republican Party."  Here are more details and context:

"After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further," the U.S. Justice Department said in a statement. In June, the U.S. Supreme Court threw out McDonnell's bribery convictions in a ruling that could make it tougher to prosecute politicians for corruption.

The eight justices, liberals and conservatives alike, overturned McDonnell's 2014 conviction, saying that his conduct fell short of an "official act" in exchange for a bribe as required for conviction under federal bribery law. Jurors had convicted McDonnell for accepting $177,000 in luxury gifts and sweetheart loans to him and his wife Maureen McDonnell from a wealthy Richmond businessman seeking to promote a dietary supplement. He was sentenced to two years in prison but remained free pending appeal.

The case was a rare instance of the nation's highest court reviewing a high-level public official's criminal conviction. The court sent the case back to lower courts to determine if there was sufficient evidence for a jury to convict McDonnell, which had kept alive the possibility of a new trial.

His lawyers applauded the decision, saying in a statement on Thursday: "Governor McDonnell can finally move on from the nightmare of the last three years and begin rebuilding his life." McDonnell served as governor from 2010 to 2014 and once was considered a possible U.S. vice presidential candidate.

His wife was convicted in a separate trial and given a one-year sentence but remained free while pursuing a separate appeal.  The Supreme Court ruling effectively applied to Maureen McDonnell too, meaning that her conviction also had to be tossed out....

Legal observers have noted that the Supreme Court ruling opens the possibility that politicians could sell meetings and other forms of access without violating federal law.  The decision was criticized by Citizens for Responsibility and Ethics in Washington, a corruption watchdog group.  It said in a statement the Justice Department had "sent a clear signal that it would not aggressively enforce corruption laws to hold public officials accountable when they abuse their office.”

As I suggested in this prior post, I am generally pleased that the Justice Department has decided that there is now no real public benefit in continuing to use taxpayer moneys to seek to further condemn and harm former Gov McDonnell and his wife for their various suspect actions.

A few of many prior related post:

September 9, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, September 08, 2016

Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process

This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:

Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty.  It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.

Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?

“I’m not saying the death penalty is unconstitutional.  I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other.  People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”

Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993.  Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.

His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...

Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.

Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....

Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”

It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.

The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....

Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.

When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.

In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.

Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.

September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, September 07, 2016

Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof

This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:

Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year.  In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty.  Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.

The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act.  In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors.  The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.

In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors.  “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....

Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.  

This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial.  That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.

September 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

"Non-Adversary Prosecution"

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

American prosecutors are conventionally understood as having two different roles.  They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice.  But these two roles are at odds.  Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions.  But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.

This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all.  Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.

In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors.  The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments.   The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules.  The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.

The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles.  And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice.  But the prosecutor should never act as an adversary committed to winning for its own sake.  The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.

September 7, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, September 06, 2016

You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?

The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:

Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.

The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court.  The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general.  But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.

An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment.  Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”

Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.

McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods.  Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....

Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it.  McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.

And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before.  It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations.  The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one.  The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....

McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act.  But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.

And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....

If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court.  And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans.  That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”

For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.

September 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (70)

"What Lurks Below Beckles"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Shakeer Rahman. Here is the abstract:

The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review.  Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well.  But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s.  This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.

The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them.  Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country.  

While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional.  As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about.  These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.

September 6, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Wednesday, August 31, 2016

"The Value of Confrontation as a Felony Sentencing Right"

The title of this post is the title of this new paper authored by Shaakirrah Sanders now available via SSRN. I have had a grand time earlier this week digging into the historic decision in Williams v. New York, so this article strikes me as especially timely. And here is its abstract:

This Article advocates recognition of the Sixth Amendment's Confrontation Clause as a felony sentencing right. Williams v. New York -- the most historic case on the issue of confrontation rights at felony sentencing -- held that cross-examination was not required to test the veracity of information presented at sentencing hearings, should constitute the beginning of the debate on the issue of confrontation rights at felony sentencing, not the end.  Williams was decided before incorporation of the Sixth Amendment's Confrontation Clause and reflects a sentencing model that assumes judicial authority to consider un-cross-examined testimony for purposes of fixing the punishment.  This assumption may be unwarranted in light of recent jurisprudence on founding era criminal procedure rights at felony sentencing.  Moreover, the standard that applied to confrontation rights at the time of Williams has been reformed and establishes that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.  While this jurisprudence has only been applied during the trial, it can be practically and efficiently applied at felony sentencing.

The Sixth Amendment's other clauses give reason to value confrontation as a felony sentencing right.  The structurally identical Jury Trial and Counsel Clauses have rejected the “trial-right-only” approach to Sixth Amendment rights.  The Counsel Clause applies to all “critical stages” of the “criminal prosecution” which includes sentencing. The Court recently expanded the Jury Trial Clause to any fact that increased the statutory maximum or minimum punishment.  In light of this jurisprudence and the growing importance of sentencing hearings, a framework should and can be established to distinguish between sentencing evidence that should be cross-examined and sentencing evidence that should not be cross-examined.  This Article concludes that confrontation should apply to evidence that is material to punishment and where cross-examination will assist in assessing truth and veracity.

August 31, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, August 30, 2016

Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines

As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration.  As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.  Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here).  Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B).  One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague.  Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).  The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline.  An emerging consensus of the circuits holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds.  But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning.  Accordingly, we now overrule Tichenor.  Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:

The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....

If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.

August 30, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Lameting modern parole practices while making a case that "Jailing Old Folks Makes No Sense"

The quoted title of this post is the headline of this new New York Times op-ed authored by Geraldine Downey and Frances Negrón-Muntaner.  But, as these extended excerpts from the commentary highlight, the piece is mostly focused on problems with modern parole decision-making:

In 1980, the methadone clinic that had been treating Gloria Rubero as an outpatient dropped her. She was soon desperate for drugs. In August that year, she and an associate took part in a burglary that went wrong and led to the murder of an elderly neighbor.  Ms. Rubero was arrested three days later, and was eventually convicted of robbery and second-degree homicide.  The judge at Ms. Rubero’s trial gave her an indeterminate sentence of 20 years to life.

At the start of her jail term, Ms. Rubero felt suicidally depressed.  But over time, she devoted herself to helping others.  In 1985, she became a founding member of the Youth Assistance Program and logged more than 200 hours of speaking to at-risk youth on the harshness of prison life.... Ms. Rubero also got an education: earning, first, her G.E.D.; and then, between 1992 and 1993, an associate in arts and a bachelor of science from Mercy College, in Dobbs Ferry, N.Y. She even made the dean’s list. [S]he also joined the maintenance staff, and excelled at electrical and plumbing work [and later] was accorded the very rare privilege of carrying tools like craft knives, screwdrivers and wire cutters.

Despite this record of rehabilitation, she was denied parole five times in a period of six years.  Each time, the parole board concluded that Ms. Rubero could not be granted parole because the “serious” and “violent” nature of her crimes made her release “incompatible with the welfare and safety of the community.”  In 1999, Ms. Rubero suffered several major strokes, and at a subsequent parole board hearing, she was unable to walk or talk. Yet she was still considered a danger to the community, and her application was denied. Ms. Rubero gradually recovered, and finally, after her sixth hearing, was granted parole and walked out of prison.  She was 56 and had spent 26 years behind bars.

Many incarcerated people would be the first to acknowledge the pain and loss their crimes caused.  But if prisoners older than 50 have served decades-long sentences and have shown evidence of rehabilitation, the only rationale for holding them appears to be endless punishment and retribution.

The problem is growing as the American prison population gets grayer.  By 2012, there were almost 125,000 inmates age 55 and older out of a total population of 2.3 million. Even as the overall prison population continues to decrease, it is estimated that by 2030, there will be more than 400,000 over 55s — a staggering increase from 1981, when there were only 8,853.  The numbers are rising despite recognition that continuing to lock up older prisoners not only does nothing to reduce crime, but is also expensive and inhumane.  More and more aging people are becoming seriously ill and dying in prison.  Prisons are not equipped to be nursing homes.

And there is mounting evidence that there is little, if any, public safety benefit to keeping people like Ms. Rubero in prison for so long.  According to recent studies, a vast majority of people over 50 who are released from prison in the United States, including those with convictions for violent offenses, are much less likely to commit a crime than younger people who have never been incarcerated.  Nationally, rearrests occur for only 2 percent of former prisoners over 50, and hardly at all among over-65s.  Most people simply age out of crime.

If older people in prison pose so little danger, why not free them?  As Ms. Rubero’s experience suggests, a major reason is a resistance to granting parole.  The criteria of parole boards in states like New York include assessments of a prisoner’s possible threat to public safety and her chances of reintegrating into society.  Yet boards primarily base their decisions to deny on the seriousness of the crime for which the person was convicted.

Overlooking the fact that elderly people who have served long sentences are not a public safety risk, parole boards focus instead on the past criminal behavior.  In effect, they prefer to resentence the prisoner rather than make a judgment about the individual’s growth since entering prison.

What can be done to change course and stop spending billions of taxpayer dollars to keep people behind bars for excessive lengths of time ? An immediate first step would be for parole boards to give more weight to a prisoner’s transformation since entering her incarceration. Indefinitely locking up prisoners who pose no security risk once they have served their minimum term and who could contribute more outside is an inexcusable waste of money and human potential.

August 30, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Feds takeover of "The Playpen" to facilitate child-porn distribution now generating court controversies

In this post from back in January, I noted early reports of a surprising government operation of a notorious "dark-web" child porn website and asked "Will FBI child porn operations generate same controversy as Fast and Furious?". This Seattle Times article highlights that the controversy is starting to find expression in motions by criminal defendants to dismiss prosecutions based on what they call outrageous government actions. Here are the basics:

For two weeks in the spring of 2015, the FBI was one of the largest purveyors of child pornography on the internet. After arresting the North Carolina administrator of The Playpen, a “dark web” child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.

They then initiated “Operation Pacifier,” a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people, including at least five in Washington state.

The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on internet privacy.  Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it.  Moreover, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted — even in court — has threatened some of the resulting criminal prosecutions.

Last month, a federal judge in Tacoma suppressed the evidence obtained against a Vancouver, Wash., school district employee indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.  Similar motions are pending in other prosecutions in Washington and elsewhere around the country.

During the two weeks the FBI operated The Playpen, the bureau says visitors to the site accessed, posted or traded at least 48,000 images, 200 videos and 13,000 links to child pornography.  At the same time, agents deployed a secret “Network Investigative Technique,” or NIT, to invade their computers, gather their personal information and send it back to the FBI.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes internet traffic through thousands of other computers to hide the identity of a user.  Tor, which is used for private communications by government officials, lawyers, journalists, judges and others, was thought to be virtually uncrackable until news of the FBI’s operation became public....

In [court] pleadings, the government has defended the operation as the only way to pierce the anonymity of the so-called “dark web” and get at the criminals who dwell there.  Such websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network. “The United States, the FBI, did not create this website,” said Assistant U.S. Attorney Keith Becker, a trial attorney with the DOJ’s Child Exploitation and Obscenity Section, at a Tacoma court hearing in January. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”

Defense attorneys, however, alleged in filings last week that FBI agents actually improved The Playpen site during the two weeks they had control, making it faster and more accessible.  Visitation of The Playpen while under FBI control jumped from 11,000 to 50,000 people a week.  “This is easily the largest domestic use of hacking by law enforcement in U.S. history,” said Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital freedom and legal services nonprofit in San Francisco. “The problem is that there just aren’t a lot of rules on how they go about it.”

“I will not be surprised at all if we wind up before the U.S. Supreme Court,” he said. Critics also accuse the FBI of committing crimes more serious than it was investigating — distribution of pornography versus receiving it — and say the operation flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.

Chris Soghoian, the principal technologist and a senior policy analyst with the American Civil Liberty Union’s Speech, Privacy, and Technology Project, said The Playpen investigation bears striking similarities to Operation Fast and Furious. “Except here, it’s child porn,” Soghoian said....

Last month, U.S. District Judge Robert Bryan in Tacoma threw out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver school employee named Jay Michaud.  The reason: The FBI has refused a court order to reveal to Michaud’s defense attorneys the nature of the Tor vulnerability or how the NIT works.  Michaud is accused of visiting the Playpen site multiple times during the two weeks it was under FBI control and viewing explicit photos of children being sexually abused. He faced up to 20 years in prison. With the evidence tossed out, Michaud’s case likely will be dismissed. The government has appealed the judge’s decision.

A federal judge in Oklahoma reached the same conclusion in an Operation Pacifier case there, and similar motions are pending in dozens of other cases.  Bryan has also allowed two other Operation Pacifier defendants in Washington state to withdraw guilty pleas so they can challenge the government over the issue.

Michaud’s attorney, Colin Fieman, a Tacoma-based federal public defender, is leading a “national defense working group” that is tracking and coordinating challenges to Operation Pacifier cases.... The case has shown that the “FBI cannot be trusted with broad hacking powers,” Fieman said.  “There is no question that the internet poses serious challenges to law enforcement,” Fieman said. But he believes that in its desire to overcome those challenges — and fight the scourge of child pornography — the agency “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”

Michaud and other defendants have also sought to have their charges dismissed due to “outrageous government conduct” over the FBI decision to take it over and leave the site running. “It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in motion to dismiss another Washington case filed last week. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”...

Judge Bryan rejected that argument in the Michaud case, stating during a January hearing that agents were “trying to catch the bad guys, so to speak.”

“Whether they did it right is a different thing,” he said. “But they didn’t do it wrong as to be grossly shocking or outrageous to violate the universal sense of justice” and warrant dismissing the charges.

Prior related post:

August 30, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, August 29, 2016

Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP

This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences.  Here are some extended excerpts:

Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles.  Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.

According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts.  They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.

“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers.  “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said.  “You can’t just lock them up and throw away the key for things they did as a child.”

Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants.  It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.  

Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles.  In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.

More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.

Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.

Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors.  Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14.  The oldest is now 71.  The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....

Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free.  Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved.  The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed.  For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....

In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen.  She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn.  Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...

Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers.  “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.

“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.”  Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.

But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette.  Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences.  Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”

August 29, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"

The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:

Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.

However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause.  This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.

These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.

August 29, 2016 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, August 28, 2016

"Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine"

The title of this post is the title of this notable new paper authored by Eve Brensike Primus now available via SSRN.  Here is the abstract:

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules.  When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits.  As a result, systemic violations of criminal procedure rights — like the right to effective counsel — persist without judicial correction.

But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy.   Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights.  And unlike the more commonly invoked cause-and-prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves.  As a result, procedural adequacy doctrine can catalyze reform in a way that cause-and-prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect.   Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules.  Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights.  Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions.  Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.

August 28, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, August 27, 2016

"Fourteen Years Later: The Capital Punishment System in California"

The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress.  Here is the abstract:

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed.  The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California.  In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.

This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years.  It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.  

This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years.  Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations.  Nevertheless, Illinois repealed its death penalty.  California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016.  By voting “Yes“ on Proposition 62, the California death penalty would be repealed.

August 27, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, August 25, 2016

New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"

In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty.  That report,  Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage.  But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America."   Here are a few excerpts of a great read from the pen of Emily Bazelon:

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away?  The 16 counties span seven states in the South and the West.  They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La.  Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split.  Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.  They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...

Black jurors are relatively absent from death-penalty trials, which can affect their outcomes.  “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court.  Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.

Prosecutors also can take steps to keep them off juries.  In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group.  “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.

Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life.  They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16.  Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.

Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s.  Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos.  This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state.  “They are all white.  Fourteen percent of the trial judges are black.  Out of 42 elected prosecutors in the state, one is black.”  Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.”  Mobile County is the site of the last known lynching in the country, in 1981.  (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.)  Jefferson had the state’s highest total of lynchings between 1877 and 1950.  In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.

August 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing

As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here).  Here is the press summary of the ruling:

Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.

In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”

Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.

Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.

The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:

Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished.  It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense.  Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial.  Juveniles, however, are not afforded the right to a jury trial.  Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.

August 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"More Bang for Your Buck: How to Improve the Incentive Structure for Indigent Defense Counsel"

The title of this post is the title of this notable new empirical paper authored by Benjamin Schwall that I just noticed on SSRN. Here is the abstract:

The payment system and related incentive structure can have a major effect on an attorney’s behavior and this impact is somewhat predictable.  Using data from the South Carolina Commission on Indigent Defense, we provide some evidence of how paying attorneys a flat fee can impact their behavior compared to paying them an hour hourly rate.  Unsurprising, the effect is that attorneys put forth less effort when being paid a flat fee.  It is important to recognize the trade-offs between controlling costs and providing effective representation that any payment system possesses. Using economic theory and a simple model, we discuss the various benefits and drawbacks of the different payment systems that are common for indigent defense attorneys.  Finally, we discuss how the different payment systems can be improved to better align the attorney’s interests with the State’s interests.

August 25, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 24, 2016

Interesting exploration of possible harms of "Gateway Crimes"

Murat Mungan has this interesting new paper up at SSRN titled simply Gateway Crimes."  Here is the abstract:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs.  This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses.

A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism.  Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime.  Therefore —  if potential offenders in fact underestimate expected conviction costs —  this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

August 24, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"

Image-fullThe title of this post is the title of this important and timely new report by the Justice Policy Institute.  Here is an extended passage from this effective JPI report's effective introduction:

Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?

In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration.  The report summarizes the relationship of offenses to the use of incarceration and how that varies by:

  • How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else.  The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently.  For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;

  • How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and

  • The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses —  such as homicide or sex offenses —  can have the lowest recidivism rates, but still end up serving long prison terms.

These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime.  How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.

This is a complicated political and systems reform issue.  When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.

When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources —  more than what we could currently “reinvest” from downsizing and closing prisons and jail.

To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration.  This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.

August 24, 2016 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, August 23, 2016

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Would the "the first liberal Supreme Court in a generation" really reshape the criminal justice system in the United States?

The question in the title of this post is prompted by this notable new Vox article headlined "How the first liberal Supreme Court in a generation could reshape America." Interestingly (and appropriately?), the article talks a lot and at length about sentencing issues, and thus it is this week's first must-read. And here are excerpts:

Odds are that very soon, the Supreme Court will become something it hasn’t been in nearly 50 years: made up of a majority of Democratic-appointed justices.

Ever since Abe Fortas’s resignation in 1969, the Court has either been split down the middle or, more often, made up primarily of Republican appointees. Some of those Republican appointees nonetheless turned out to be liberals, but even taking that into account, the Court hasn’t been majority liberal since 1971, when William Rehnquist and Lewis Powell joined....

The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. But though Senate Republicans have denied they’ll confirm him in the lame-duck session this winter, should Hillary Clinton win they might be tempted to confirm him lest she name a more liberal nominee. Either way, the result is a moderate to liberal justice in Scalia’s seat, moving the Court appreciably to the left.

Clinton also stands a good chance of replacing the moderate-to-conservative Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping Ruth Bader Ginsburg (83 and a two-time cancer survivor) and Stephen Breyer’s (78) seats in liberal hands. The result would be a solid 6-3 liberal majority of a kind not seen in many decades....

A liberal Court could end long-term solitary confinement. It could mandate better prison conditions in general, making it more costly to maintain mass incarceration. It could conceivably end the death penalty. It could uphold tough state campaign finance rules and start to move away from Citizens United. It could start to develop a robust right to vote and limit gerrymandering. It could strengthen abortion rights, moving toward viewing abortion rights as a matter of equal protection for women....

Let’s start with perhaps the biggest thing that could happen under a liberal Court, perhaps even a Court where another conservative replaces Scalia: the end of long-term solitary confinement. In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his more than 25 years in prison....

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice. With four reliable liberals already on the Court and likely to join him, it’s quite likely that such a case would end with solitary confinement sharply limited....

Solitary confinement is perhaps the most shockingly cruel condition of imprisonment in the United States, but the sheer scale of mass incarceration is also an issue in need of addressing. And because federal courts have the ability to affect policy at both the federal and state level, they can have considerable influence on the incarceration rate going forward.... "The new focus of prison conditions, which could be a real game changer in my view, is the intersection of overcrowding with mental and physical health burdens. The real game changer in terms of the current prison population is how disease-burdened it is," [Professor Jonathan] Simon says. "That could be pretty far-reaching because states have to contemplate the consequence of incarcerating so many aging prisoners."...

One way in which the courts could be more receptive to directly challenging sentences, she says, is by starting to take "collateral consequences" into account. That’s the technical term for the myriad ways that criminal convictions, and in particular sex crime convictions, can hamper defendants’ lives in the long term. That includes restrictions on where they can live after they’re released from prison, bans on government employment and benefits like public housing, inclusion on sex offender registries, bans on gun purchases and voting, and so forth....

Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug cocktail Oklahoma currently uses in executions doesn't violate the Eighth Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other three liberals, narrowly argued against the specific drugs. Breyer's dissent took aim at capital punishment as a whole....

It’s telling that neither Sotomayor nor Elena Kagan, the two other liberals on the Court, joined Breyer’s opinion. And it’s hard to imagine Merrick Garland, who was one of the prosecutors who successfully sought to see Timothy McVeigh executed, declaring his own past actions categorically unconstitutional. But if Garland’s nomination fails and Clinton picks a less tough-on-crime nominee for Scalia’s seat, or if Kennedy leaves the Court during her presidency, it’s conceivable there would exist five votes for outright abolition of the death penalty.

"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm somewhat optimistic about including Kennedy goes back to his interest in dignity. The strongest of the opinions in Furman" — the 1972 case that briefly abolished capital punishment — "was William Brennan's, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can't carry out without respecting the dignity of those being punished." Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case....

One other death penalty–related case Simon thinks the Court could amend or overturn, which could have widespread implication outside this specific issue area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a death sentence for a black defendant could not be overturned due to the state of Georgia's hugely disproportionate imposition of capital punishment on African Americans. The effect of that was to foreclose challenges to the criminal justice system premised on its discriminatory effect — the Court required that plaintiffs show that discrimination was intended, not merely that the system was in effect discriminating against African Americans.

"It's been terrible for equal protection law generally. Criminal justice is run through with very disproportionate racial practices that are very difficult to prove as discrimination," Simon says. "Overturning McCleskey, and a companion case a few years later, could be a really important change agent both in unleashing the potential for trial court challenges to racially disproportionate criminal justice practices of all sorts, and perhaps ending the death penalty in those states where it seems most firmly rooted, like Texas and Florida."

August 22, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, August 21, 2016

"Plea Bargaining and Price Theory"

The title of this post is the title of this interesting looking new paper authored by Russell Covey now available via SSRN.  Here is the abstract:

Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty.  Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can — like pricing mechanisms generally — both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified.

This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory.  That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts.  Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.

August 21, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, August 19, 2016

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle."  Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

August 19, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 18, 2016

Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state

This new press release from the Institute of Governmental Studies at UC Berkeley, which is titled "IGS Poll Finds Support for Retaining Death Penalty," suggests that California voters have some strong preferences regarding competing death penalty ballot initiatives.  Here are the interesting details via the main text of the press release:

California voters oppose an effort to abolish the death penalty and strongly support a competing measure that would streamline procedures in capital cases, according to a new poll released today by the Institute of Governmental Studies at the University of California, Berkeley.

Respondents opposed the abolition measure 55.1 percent to 44.9 percent, while three out of four respondents supported the streamlining proposition, the survey found. Since the two measures conflict, if both should pass, the measure receiving more votes would take effect.

The poll used online English-language questionnaires to survey respondents from June 29 to July 18. All respondents were registered California voters, and the responses were then weighted to reflect the statewide distribution of the California population by gender, race/ethnicity, education and age. The sample size for the questions on the two death penalty initiatives was 1,506 respondents for one question and 1,512 for the other.

A stark partisan difference emerged on Proposition 62, which would abolish capital punishment and replace it with a sentence of life without the possibility of parole. Democrats supported the measure, 55.1 percent to 44.9 percent. Republicans overwhelmingly opposed it, 70.2 percent to 29.8 percent. Independents were also opposed, though by only 60.6 percent to 39.4 percent. By contrast, there was support across partisan lines for Proposition 66, which would streamline procedures in capital cases to speed up the resolution of those cases. Even among Democrats there was strong support (69.7 percent) for the measure, and support was even higher among independents (81.1 percent) and Republicans (85 percent).

A majority (60 percent) of African-Americans favored abolishing the death penalty, but among all other ethnic groups, most respondents opposed that proposal. Support for the death penalty was stronger among older people.

Interestingly, religious differences were reflected in views about abolishing the death penalty, but mostly that difference was related to whether the respondent was or was not religious, rather than to differences among various religious denominations. Among all religious groups there was majority opposition to eliminating the death penalty; only among the self-identified atheists and agnostics did most voters support abolition of capital punishment.

Prior related posts:

August 18, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts

I just saw this fascinating new Empirical SCOTUS post by Adam Feldman titled "Five SCOTUS Decisions Making Waves in the Lower Courts." I was not at all surprised that three of the five cases making the list are sentencing cases (and the other two deal with criminal procedure matters), and here are snippets from the post providing the highlights:

[Supreme Court] rulings in many cases each Term go under the radar [because] they deal with less politically salient issues. Some of these cases, however, have the greatest downstream effects.

This post looks at five “sleeper cases” from this past Term that have made their major impact through the lower courts. The immediate significance of these decisions is in how they change or clarify rules and laws and consequently the trajectory of many lower court decisions. They are especially impactful in criminal cases as they tend to arise when dealing with rights of those accused or convicted of crimes.

The post ranks the cases based on the relative number of times they have been cited by a combination of federal and state lower courts (even though these decisions were made across several months of the Term, the number of times they were cited makes it unlikely that the variation in decision timing has a substantial effect on this list of cases).

5) Mathis v. United States, decided June 23, 2016 (75 lower court citations)...

4) Ross v. Blake, decided June 6, 2016 (107 lower court citations)...

3) Mullenix v. Luna (per curiam), decided November 9, 2015 (213 lower court citations)...

2) Montgomery v. Louisiana, decided January 25, 2016 (373 lower court citations) ....

1) Welch v. United States, decided April 18, 2016 (765 lower court citations) ...

My colleagues and students are certainly tired of hearing me claim that sentencing issues are often the most important public policy issues of this generation and that SCOTUS sentencing rulings are often the most consequential of all cases. Needless to say, these notable empirics is not going to reduce my tendency to aggrandize the issues and cases that are my own professional obsession.

August 18, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Wednesday, August 17, 2016

Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases

This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting.  Here are the details:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.

Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.

Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez.  Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.

U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case.  Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.

Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.

A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing.  “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly.  "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”

Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."

"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.

The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.

"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best."  His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."

Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine.  At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed.  The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora.  Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.

"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes.  Walls said businesses that win contracts from government agencies should hold themselves to a higher standard.  He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments.  "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.

Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced.  Prosecutors would not file "5K1.1" motions for them, she added.

August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Split Pennsylvania Supreme Court limits reach of state's lifetime sex offender registry requirement

As reported in this local article, a "ruling issued by a sharply-divided Pennsylvania Supreme Court could greatly alter the registration requirements imposed on some types of convicted sex offenders." Here is more about the ruling and its likely impact:

The decision by the court's majority states that offenders who commit some kinds of sex crimes, such as possessing child pornography, cannot be made to register with state police for life unless they commit at least one more sex crime after their initial convictions. In other words, they have to become recidivists to qualify for the lifetime registration. State police have been requiring such first-time offenders to register for life if they have multiple sex crime convictions stemming from just one criminal incident.

Dauphin County District Attorney Ed Marsico said Tuesday that the high court's decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements - some offenses carry registration terms as low as 10 years - can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration. "The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."

The dispute before the Supreme Court hinged on the interpretation of the wording of a state law that requires lifetime registration for some sex offenders who receive "two or more convictions." A Supreme Court majority consisting of Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue concluded the wording means sex offenders in some cases must be convicted of such crimes for two separate incidents to trigger the lifetime registration mandate. Justices Debra McClosky Todd and David N. Wecht dissented.

The majority decision means sex offenders convicted of "Tier 1" crimes including kidnapping of minors, child luring, institutional sexual assault, indecent assault, prostitution involving minors, possessing child porn and unlawful contact with a minor won't be required to register for life on their first offense, no matter how many charges their first convictions entail. They will still have to register with police for 10 years.

The Supreme Court majority opinion written by Dougherty dealt with the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send sexually explicit photos of herself. He was arrested in 2000 when her father found the pics. After pleading guilty to seven child porn counts, he was sentenced to 5 to 23 months in county prison, plus 5 years of probation.

At the time of his plea and sentencing, the man, who is identified in the court opinion as A.S., along with the judge, prosecutor and defense attorney believed he would be subject to a 10-year registration, Dougherty noted. State police told him he had to register for life because of his multiple convictions in that single case....

Cumberland County District Attorney David Freed agreed with Marsico that the Supreme Court ruling could affect some plea talks. Still, he said it won't greatly alter the course of sex crime prosecutions. "As prosecutors, we'll be able to handle this," Freed said. The question is whether there will be moves in the Legislature to alter the law in light of the high court's decision.

Defense attorney Brian Perry praised the Supreme Court ruling for giving some offenders a chance to reform. "The court's decision allows individuals to rehabilitate themselves and not have to deal with (registration) for the rest of their lives," Perry said. "From the first-time defendant's perspective, it certainly makes sense."

The full opinion from the Pennsylvania Supreme Court in this case is available at this link.

August 17, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)