Saturday, June 25, 2016

"Trauma Informed Juvenile Justice"

The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope.  The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence.  When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults.  The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives.  The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention.  Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community.  Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.

June 25, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Friday, June 24, 2016

Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case

Download (1)As regularly readers know, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.  That hydra has been taking various bites out of capital cases most prominently in Alabama and Delaware as well as Florida, but this article from my own local Ohio paper highlights how new heads can pop up in unexpected places.  The article is headlined "Prosecutor: Marion County judge's ruling puts death penalty in jeopardy," and here are the interesting details:

A Marion County judge this week dropped the death penalty elements from a convicted murderer-rapist's sentence on the grounds that there were similarities to a Florida death sentence ruled unconstitutional by the U.S. Supreme Court this year.

Because Florida and Ohio have similar sentencing and procedural guidelines, defense attorneys argued that Maurice A. Mason, sentenced in 1994 for raping and beating to death Robin Dennis, then 19 and pregnant, should not be executed.

The case could have implications in other capital cases in Ohio, said Marion County Prosecutor Brent Yager, who disagreed with Monday's decision by Marion Common Pleas Court Judge William Finnegan. "I was surprised," said Yager. "I believe that there is a distinction between the death penalty in Florida and in Ohio."...

Finnegan, in his ruling, wrote that the Hurst decision makes clear that the Sixth Amendment requires juries make specific findings to authorize the death penalty.  Ohio, he wrote, "has no provision for the jury to make specific findings related to the weighing of aggravating and mitigating factors," and thus is unconstitutional.

Yager said Ohio differs from Florida because juries here directly decide the aggravating circumstances in a capital case used in the penalty phase and sentencing, although judge's have the ability to commute the death sentence in lieu of life in prison....  Yager said the ruling is frustrating, in part because victim families and lawmakers expect swift and certain justice.

"Ohio and the state legislature have decided we still should have a death penalty in Ohio," said Yager. "But based on the judge's ruling here, if this stands, our death penalty would be unconstitutional. This decision does become a statewide issue." Yager said he plans to file an appeal with the Third Circuit Court of Appeals in Lima.

Mason's attorney, Kort Gatterdam, said the decision should "withstand scrutiny from higher courts and will become the law of this state ... and could become the basis to eliminate the death penalty in Ohio."...

Mason, now 52, has been moved from death row to a regular cell at the Mansfield Correctional Institution. With no sentence on record for the murder conviction, he technically is eligible for a parole hearing. But the Ohio Department of Rehabilitation and Correction and the parole board have said that won't happen his ultimate sentence for murder is resolved.

Not long after SCOTUS ruled in Hurst, a very smart and savvy local lawyer told me that he thought a strong argument could be made that Ohio's capital sentencing scheme has Hurst problems. Apparently, at least one state trial judge agrees, and it will be very interesting to watch the certain appeal of this ruling in the state courts as well as whether this ruling echoes through lots and lots of other Ohio capital cases past and present.

The full 50-page ruling in Ohio v. Mason, No. 93CR1053 (Ohio Common Pleas Ct. June 20, 2016), is available at this link. I have not yet had a chance to read the opinion, but I think it surely is a must-read for capital litigators of all stripes in Ohio and elsewhere.

June 24, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Do all or most prosecutors really end up "hostile to constitutional rights"?

The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights."  The full article is a must-read for lots of reasons, and how it gets started should highlight why:

Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.

Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.

When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly.  I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end.  I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights.  I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them.  I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types.  Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them.  Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.

June 24, 2016 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (7)

Split Arkansas Supreme Court upholds state's new secrecy law to allow execution plans to move forward

Download (21)As reported in this AP piece, "Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential."  Here is more about the ruling and its context:

Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions.  Generally, a ruling goes into effect 18 days after it is issued. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more. So, for the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which she had not done as of Thursday.

"I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims' families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General," she wrote in an emailed statement.  Arkansas Department of Correction spokesman Solomon Graves would not say whether the agency would try to move forward with the executions. When asked whether the department had tried to negotiate purchasing additional drugs or contacted the suppliers to see whether Thursday's ruling would entice them to sell, Graves said he could not engage in hypotheticals....

The court noted in its ruling an affidavit from a prison official, who said he had contacted at least five other drug wholesalers and manufacturers that said they would not sell the drugs to the state or would not sell them without the makers' permission. It was unclear whether Thursday's actions would change those companies' decisions.  The attorney general's office would not advise the Department of Correction to use the drugs after they expire, spokesman Judd Deere said.

A group of death row inmates had argued that Arkansas' execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information.  But the high court said in its 4-3 majority opinion that a lower court "erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."

Jeff Rosenzweig, an attorney representing the inmates, said he is "studying the decision and anticipate filing a petition for rehearing."  Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution's prohibition on cruel or unusual punishment. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information....

For more than 10 years, Arkansas' executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates' challenge could be heard.  Hutchinson "believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier," spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding "the appropriate next steps to take."

The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment.  The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.

Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear whether they would need another opportunity to apply for clemency because a new date of execution would have to be set.

The full ruling from the Arkansas Supreme Court can be accessed at this link, and this passage from the majority opinion helps explain the import of the Supreme Court's Glossip ruling on this state case:

In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol.  They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.”  As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim.  We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution.  Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain.

June 24, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, June 23, 2016

"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."

The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here).   In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix.  Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post: 

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....

Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....

A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.

The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.

June 23, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Stressing harms of drunk driving, SCOTUS upholds warrantless breath tests (but not warrantless blood tests) incident to arrest

The Supreme Court handed down its last big Fourth Amendment decision of this Term, and Birchfield v. North Dakota, No. 14–1468 (S. Ct. June 23, 2016) (available here), is a nuanced ruling that I am glad to see makes much of the scourage of drunk driving. Here is the start of the Birchfield opinion for the Court authored by Justice Alito, as well as two key summary paragraphs from deep into the opinion:

Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.  To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level.  But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.

In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license.  The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired.  The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches....

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The impact of breath tests on privacy is slight, and the need for BAC testing is great.

We reach a different conclusion with respect to blood tests.  Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.  Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

Chief Justice Roberts and Justices Kennedy, Breyer and Kagan joined Justice Alito's opinion for the Court.  Justice Sotomayor, joined by Justice Ginsburg, filed an opinion concurring in part and dissenting in part. Justice Thomas also filed his own opinion concurring in the judgment in part and dissenting in part.

June 23, 2016 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Another ACCA win for federal defendants in Mathis

The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants.  Here is the start of the Mathis opinion for the Court authored by Justice Kagan:

The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.”  To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood.  For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.

Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.

June 23, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Religious Objections to the Death Penalty after Hobby Lobby"

The title of this post is the title of this intriguing piece authored by Danieli Evans now available via SSRN. Here is the abstract:

In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty.  I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.

June 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Who Sentences? | Permalink | Comments (0)

Wednesday, June 22, 2016

Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?

Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations.  Some of these opinions will be handed down tomorrow and the others are likely to be released early next week.  Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case).  Here are Amy's review of the four criminal cases left:

Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Birchfield v. North Dakota (argued April 20, 2016).  Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.   The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.

Mathis v. United States (argued April 26, 2016).  After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions.  The Eighth Circuit affirmed his conviction.  The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.

McDonnell v. United States (argued April 27, 2016).  Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in.  He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.

I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.

As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.

June 22, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Ninth Circuit discusses timing and tolling for successor 2255 petitions making Johnson claims

Hard-core habeas fans know that all sorts of procedural issues can potentially trip up federal defendants serving Armed Career Criminal Act sentences from being able to bring claims collaterally attacking their sentences based on Johnson v. US.  Some of the procedural trip-wires, and potential work-arounds, are discussed today by a Ninth Circuit panel in Orona v. US, No. 16-70568 (9th Cir. June 22, 2016) (available here).

I am not sure any of the particulars discussed in Orona are that noteworthy, but I thought the case merited a blog mention because this week is, arguably, the last week in which defendants with long-final sentences can bring timely collateral attacks based on Johnson.

June 22, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Tuesday, June 21, 2016

"Society would benefit from rewarding attorneys for identifying the wrongly and unnecessarily imprisoned"

Regulation-summer-16-cover_0The title of this post is the subheading of this great new article in the latest issue of Regulation published by the Cato Institute. The article, authored Christopher Robertson and Jamie Cox Robertson, carries the main title of "Reducing Wasteful Incarcerations," and here are excerpts from the start and heart of the article:

Prisons are essential to a safe and civil society.  Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key.  This expense is compounded by errors in the U.S. legal system that produces both false guilty verdicts and overly harsh penalties.  It’s time for the United States to take a closer look at these unnecessary incarcerations.  By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system — not to mention restore freedom to people who are wrongly being deprived of it.  Unfortunately, it is difficult to identify which prisoners are wrongly incarcerated, and itwould take an enormous investment of professional expertise and money to produce that information.  However, we could make valuable progress on this issue by offering appropriate incentives for attorneys to identify some of these wasteful incarcerations, thus saving public money and serving the ends of liberty....

Under current law, most prisoners probably deserve to be there, and there is no simple algorithm for identifying which ones don’t.  The challenge is to separate the wheat from the chaff, and that requires professional skills and the investment of both time and money.  Currently, to do this sorting, we largely depend on charity, luck, and pluck, which is no way to run a multibillion dollar government enterprise.

A better approach would be for the government to increase funding for public defenders so they can do more post-conviction litigation.  Some public defenders already have in-house innocence projects.  Still, funding for public defenders’ offices is notoriously scarce, the salaries offered for these cases often fail to attract the best attorneys needed to undertake such complex work, and the overworked offices naturally triage in favor of new cases.

Of course, we could spend more on public defenders.  But as a centrally planned solution, it’s hard to assessthe optimal level of investment.  Prior reform efforts suggest that additional spending on public defenders may also be politically infeasible because it is often viewed as providing a service for criminals.

Instead, governmentsshould consider using a contingent-fee system for post-conviction counsel.  Attorneys would only receive this fee if they successfully show that a prisoner’s continued incarceration is wrongful.  The fee could be based on a simple proportion of the estimated amount the government would save by stopping the incarceration — perhaps 50% of those costs.  Or, the system could be set up like the statutory fee paid to civil rights attorneys, taking into account a reasonable hourly rate multiplied by a factor to recognize the low chances of prevailing.  In the False Claims Act, passed during the Civil War to root out fraud by government contractors, and the more recent whistle blower statute that the Internal Revenue Service uses to expose tax evaders,we have precedents for paying financial rewardsthat align the interests of knowledgeable individuals and the government.

The advantage of a contingent fee is that it gives attorneys an incentive to search for worthy cases and bring them to prosecutors and the courts, which is exactly what a cost-conscious government needs.  Unlike desperate and unskilled prisoners representing themselves, attorneys would have no incentive to clog the courts with frivolous claims for post-conviction relief.  Any such claim would require the investment of time and money without promise of return.  Instead, we should expect a small industry of specialist attorneys to develop, at first focusing on the low-hanging fruit, but then becoming more specialized to identify entire categories of cases where review is most promising.

June 21, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency

As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities.  Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:

Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.

A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences.  If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.

"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said.  "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."

The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.

In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era."  He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.

"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine.  "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."

Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt.  (He's also granted just 70 pardons, fewer than any full-term president since 1800.)

But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process.  A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough.  There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records.  Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.

I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments.  But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space.  As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."

I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention.  But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.

June 21, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"What is 'violent' crime?"

The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:

What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.

Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.”  If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.

Perhaps nowhere is this issue more evident than in recent debates about drug crime.  Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.

Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime.  Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.

I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.

Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf.  Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry.  Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.

They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?

Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it.  This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly.  Why isn’t selling alcohol or cigarettes a violent act?  What about gun possession?  Drunk driving?  Theft?  Or even tax evasion?

While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently.  Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not.  Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....

Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent.  (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.)  Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent.  If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.

If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct.  Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal.  But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.

June 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Intriguing review of Georgia's intriguing modern history with capital punishment

Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty.  And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention.  Here is how the piece starts:

It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.

During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.

A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.

The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”

June 21, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, June 20, 2016

"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"

The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records.  However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.  

To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies.  Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race.  Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods).  Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates.  However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect.  Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

A couple of SCOTUS wins for prosecution in procedural cases

There really are no more big sentencing cases pending on the SCOTUS docket, but the Supreme Court is still resolving a number of cases dealing with a number of criminal justice issues.  Today, two such cases were handed down, and here are the basics (with links) via How Appealing:

Justice Samuel A. Alito, Jr. delivered the opinion of the Court in Taylor v. United States, No. 14-6166. Justice Clarence Thomas issued a dissenting opinion.... 

Justice Thomas delivered the opinion of the Court in Utah v. Strieff, No. 14-1373. Justice Sotomayor issued a dissenting opinion, in which Justice Ginsburg joined in part. And Justice Kagan issued a dissenting opinion, in which Justice Ginsburg joined. 

For some early commentary, here are two posts from Crime & Consequences on these cases:

I expect C&C and SCOTUSblog and others will have more commentary on these cases before too long, though neither appear to blockbusters. And because I am on the road most of the rest of the day, I hope commentors will flag anything in these opinions that ought to be of special interest to sentencing fans.

June 20, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas

Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).

Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul.  Here is how Justice Alito starts his dissent on one of these cases:

This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.

June 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, June 19, 2016

Alabama appeals court says, in essense, "roll tide" to its capital sentencing process

78f550493aece6b4d5c83d32617bce5eAs reported in this post from a few months ago, a county judge had declared Alabama's capital murder sentencing scheme unconstitutional because it allows judges to override jury recommendations of life without parole and instead impose the death penalty.  But, as reported by this local article, late last week an Alabama appeals court took a different view.  Here are the basics:

An Alabama appeals court on Friday ordered a Jefferson County judge to vacate her rulings earlier this year that declared the state's capital punishment sentencing scheme unconstitutional. In its order the Alabama Court of Criminal Appeals says the state's capital sentencing scheme is constitutional and told Jefferson County Circuit Court Judge Tracie Todd to vacate her March 3 order in the pending capital murder cases of four men that says otherwise.

The Alabama Attorney General's Office had filed four petitions for a writ of mandamus asking the Alabama Court of Criminal Appeals to direct Todd to vacate her orders and allow the state to decide whether to seek imposition of the death penalty in those cases if it decides.

The cases involve Kenneth Eugene Billups, Stanley Brent Chapman, Terrell Corey McMullin, and Benjamin Todd Acton who were all indicted for various counts of capital murder. Chapman and McMullin are charged in the same case and the others in separate cases. Before their trials, the men each filed a motion to bar imposition of the death penalty in their cases and to hold Alabama's capital-sentencing scheme unconstitutional based on the United States Supreme Court's decision in January declaring Florida's death sentencing system unconstitutional....

Todd agreed and declared the capital murder sentencing law unconstitutional in a 28-page order. "The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd stated in her ruling. "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The Court of Criminal Appeals, however, said Friday that the state's capital sentencing law is constitutional. "Alabama's capital-sentencing scheme is constitutional under (U.S. Supreme Court rulings) Apprendi, Ring, and Hurst, and the circuit court (Todd) erred in holding otherwise and prohibiting the State from seeking the death penalty in capital-murder prosecutions," the appeals court opinion on Friday states.

The Alabama Attorney General's Office established the prerequisites for the appeals court to issue an order to Todd telling her to vacate her opinion, the appeals court stated in its order. "Therefore, the circuit court (Todd) is directed to set aside its order holding Alabama's capital-sentencing scheme unconstitutional and to allow the State to seek the death penalty in capital-murder prosecutions if it chooses to do so.

The appeals court ruled that under Alabama's capital-sentencing scheme a capital murder defendant "is not eligible for the death penalty unless the jury unanimously finds beyond a reasonable doubt, either during the guilt phase or during the penalty phase of the trial, that at least one of the aggravating circumstances ... exists."

The court noted that Florida's law, which was struck down by the U.S. Supreme Court in January as unconstitutional, was conditioned on a first-degree-murder defendant's eligibility for the death penalty based on a finding by the trial judge, rather than the jury, that an aggravating circumstance existed. The appeals court also criticized the fact that the Attorney General was not given a the required notice that a state law was being challenged as unconstitutional and that Todd then didn't allow an assistant AG to speak at the hearing she held before making her ruling. Todd also had pre-written her ruling before the hearing, the court stated.

Judges Mike Joiner and Liles Burke concurred with the majority although they differed on some points in separate opinions. Both Joiner and Burke criticized Todd's order. Todd's order "contains sparse analysis on the application of Hurst to Alabama's capital-sentencing scheme," Burke wrote. "The majority of the order is devoted to the trial court's opinions regarding partisan politics, the effects of an elected judiciary, court funding, and the propriety of the death penalty in general," Burke states. "Additionally, the trial court extensively cites secondary sources, including materials from "Project Hope to Abolish the Death Penalty" as well as from the Web site of the Equal Justice Initiative, a nonprofit organization whose attorneys are representing the defendants in this very proceeding." "In reviewing the materials that were filed with this Court, I find no mention of these issues," Burke writes. "Thus, I question whether the trial court's (Todd's) ultimate conclusion is based on its analysis of Hurst or on the trial judge's personal opinions regarding Alabama's death penalty."

Alabama's attorney general reacted to the ruling early Friday night. "Today's decision by the Alabama Court of Criminal Appeals is the first case to affirm under Hurst that Alabama's capital sentencing is constitutional," Alabama Attorney General Luther Strange stated in a Friday evening press release. "The Appeals Court vacated the Jefferson County Court's March order and thereby held that Alabama can continue to seek the death penalty in capital murder prosecutions."

It's unclear, however, how Friday's ruling might affect recent orders by the U.S. Supreme Court telling the Alabama Court of Criminal Appeals to reconsider the appeals of three Alabama death row inmates in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

The full 58-pages of opinions from the Alabama Court of Appeals can be accessed at this link.

Some prior related posts:

June 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, June 18, 2016

Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort

Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:

Federal judges at least have lifetime tenure to insulate them from public pressure.  For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible.  The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary.  Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias.  In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention.  In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California.  More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner.  To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students.  Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge.  But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977.  Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously.  The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants.  Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses.  Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take.  But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence.  The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly — and there is no reason to believe that will be true only in cases with white male rape defendants.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white.  That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts.  But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do.  “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society.  It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures.  In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment?  The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.

Prior related posts:

June 18, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, June 17, 2016

"'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline"

The title of this post is the title of this notable new article authored by Frank Bowman now available via SSRN. Here is the abstract:

This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.

June 17, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, June 16, 2016

Delaware Supreme Court struggles to tame the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases. This local article reports on the Delaware Supreme Court arguments yesterday trying to sort out the constitutionality of the state's death penalty law in the wake of Hurst.  Here are excerpts:

After two sides argued their cases Wednesday morning, justices on Delaware’s highest court departed to consider the constitutionality of the most severe punishment of all – death.

The Delaware Supreme Court is weighing the merits of a judge’s role in capital punishment sentencing and how it relates to the right to a jury trial. “We understand how important this is (to all you),” said Chief Justice Leo E. Strine Jr. before exiting the packed courtroom with his four Supreme Court colleagues.

The issue arose after the U.S. Supreme Court determined in January that Florida’s death penalty statute was unconstitutional and that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” After the ruling, all death penalty trials in Delaware were stopped until more clarity was brought to the state’s process and how it relates to the constitution.

According to the Supreme Court in an order, there are over two dozen capital cases pending in Superior Court, four scheduled for trial, in less than 120 days.

Questions to the court were raised in the currently pending murder case of Benjamin Rauf. On Wednesday, attorneys presented their beliefs before the court in a scheduled 60-minute session, at times engaging in question and answer discussions with the justices.

Since a jury decides whether a case is death penalty eligible in Delaware, the state maintains that constitutional requirements are currently met. Deputy Attorney General Sean Lugg argued for the state on Wednesday. Mr. Lugg said Delaware’s sentencing scheme, which was revised in 2002 in response to a previous U.S. Supreme Court ruling, meets all of the elements outlined by the Supreme Court in the Florida decision, according to the Associated Press. “The fundamental right to a jury is provided by the Delaware statute,” he said....

In Delaware, judges have the final say on whether a death sentence is ordered; a jury must find at least one statutory aggravating factor unanimously and beyond a reasonable doubt to make a defendant death penalty eligible. In Florida, judges had the responsibility to find any “aggravating factors” that qualify it for possible capital punishment sentencing.

Assistant Public Defender Santino Ceccotti argued for the appellant. “The Sixth Amendment requires not a judge, but a jury, to find each fact,” he said.

Prior related post:

June 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 15, 2016

"The Antidemocratic Sixth Amendment"

The title of this post is the title of this intringuing new article about the right to counsel authored by Janet Moore and now available via SSRN. Here is the abstract:

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers.  These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel.  This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent.

The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute.  The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel.  Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

June 15, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Substantive and Procedural Silence"

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

Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases.  Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations.

Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case.  This article has two purposes.  One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence.  And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.

June 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, June 14, 2016

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

June 14, 2016 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, June 13, 2016

Intriguing Ninth Circuit ruling about restitution and forfeiture and the Excessive Fines Clause

The Ninth Circuit handed down an interesting new opinion dealing with various challenges to various financial sanctions in US v. Beecroft, No. 12-10175 (9th Cir. June 13, 2016) (available here). Here are snippets from the start and heart of the extended ruling:

Following her convictions for participating in an extensive mortgage-fraud conspiracy, a defendant was ordered to pay more than $2 million in restitution and to forfeit more than $100 million. We must decide whether either amount was erroneously calculated or unconstitutionally excessive....

As noted, Beecroft has not demonstrated error in the district court’s calculation of the amount of losses suffered by the banks injured by Beecroft’s actions. Without error in the loss calculation, Beecroft cannot show that requiring her to pay that amount back to the victims was somehow excessive or grossly disproportional to her crimes, which caused the loss in the first place. And we reiterate that Beecroft was not ordered to pay anything approaching the full amount of the banks’ losses. Uncontroverted evidence was presented to the district court showing that the scheme in which Beecroft participated caused losses in excess of $50 million; requiring her to pay slightly more than $2 million of that back is not an unconstitutional and excessive punishment....

The $107 million Beecroft was ordered to forfeit for the conspiracy (Count 1) stands apart. As with the other counts of conviction, for Count 1 Beecroft could be fined no more than $1 million (with a Guidelines range beginning as low as $20,000). In other words, for Count 1, Beecroft was ordered to forfeit a sum more than 100 times greater than the maximum fine allowable and more than 5,000 times greater than the lower-end of the Guidelines range. Even accounting for the fact that Beecroft faced potentially significant prison time as well, see Mackby, 339 F.3d at 1018, this is a tremendous disconnect between the forfeiture amount and Beecroft’s legally available fine. Indeed, such a disconnect stands out even among forfeiture orders which have previously been held grossly disproportional....

The government cites no case upholding a forfeiture order with a disparity similar to the one here, and it has not attempted to argue that the $107 million otherwise corresponds to injuries sustained by the government or the banks....

We have little doubt that the Eighth Amendment allows Beecroft to be ordered to forfeit a substantial sum of money for her participation in such an extensive and damaging conspiracy. But difficulty remains with the exceptional amount of forfeiture the court did impose. Without even an argument supporting the propriety of the $107 million forfeiture, we have no choice but to conclude that an order which so vastly outpaces the otherwise available penalties for Beecroft’s criminal activity runs afoul of the Excessive Fines Clause. Even on plain-error review, we must vacate the forfeiture order with respect to Count 1 and remand to the district court for reconsideration of that amount in light of the Eighth Amendment’s Excessive Fines Clause.

June 13, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2)

SCOTUS finds no Sixth Amendment problems with reliance on uncounseled tribal conviction

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

June 13, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Friday, June 10, 2016

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this notable data-heavy new report from The Sentencing Project.  Here is part of the reports "Overview" section:

Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism.  As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%.  Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.

At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions.  The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance.  Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement.  These consequences set individuals back by imposing new punishments after prison.  Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects.  Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling.  An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.

This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.

June 10, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing

A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:

The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram.  This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount.  These findings are irreconcilable.  By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this.  I dissent from this aspect of the court’s decision, but join in all other aspects....

A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.”  The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit.  Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....

In its ruling today, the court affirms the district court’s application of Watts to this case.  It should not.  Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157.  Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact.  An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....

As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original).  In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds.  And if the jury system is to mean anything, this outcome is a problem.

June 10, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, June 09, 2016

"The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"

The title of this post is the subheadline of this notable new Slate commentary authored by Mark Joseph Stern run under the main headline "Justice for None." The piece highlights that we are already now at the stage of seeing some backlash to the backlash over the lenient sentence given to Brock Turner. Here are excerpts:

Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism.  This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left....

[T]he movement to remove Persky from the bench will not, and cannot, be limited to this one case. It would set a clear precedent that liberals should feel empowered to knock judges off the bench when they really disapprove of their rulings.  That is an extraordinarily dangerous mindset — one conservatives have exploited for decades. In 1986, Republicans spearheaded a successful campaign to oust three justices from the California Supreme Court over their judicial opposition to capital punishment.  The overtly partisan effort politicized the court and temporarily shattered the state judiciary’s independence. More recently, anti-gay activists ousted three judges from the Iowa Supreme Court over their votes affirming same-sex couples’ right to wed.

American liberals have long looked upon these efforts as antithetical to the judiciary’s responsibility to remain above politics and faithfulness to the law.  Is that belief suspended when the judge issued a sexist ruling rather than a progressive one?  Even worse, Persky has received anonymous threats from social justice advocates outraged by his ruling. These hecklers may believe their cause to be noble, but they are taking a page straight from Donald Trump’s playbook — not a good look for activists hoping to combat everything Trump stands for.

Then there is the widely lauded victim impact statement Turner’s victim read during the sentencing hearing.  I am glad she wrote this extraordinarily powerful letter and glad so many millions have read and been moved by it.  But it had absolutely no place in the courtroom. Victim impact statements were once a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights.  In a criminal sentencing hearing, the judge (or jury) should consider only the facts of the case at hand in determining the defendant’s culpability.  Victim impact statements introduce a massive amount of emotion into the proceedings, allowing the judge or jury to be swayed by emotional response rather than logical reflection.  That, in turn, shifts the focus away from the defendant and toward the victim while injecting arbitrariness into the sentencing process.  The defendant’s punishment may well hinge on how emotionally compelling the victim can make his or her statement....

Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence.  That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system.  What Brock Turner did was sickening; what he received as punishment is far less than what he deserved.  But eroding due process and threatening judicial independence is not the way to bring his victim justice.

Prior related posts:

June 9, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse

A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started: 

In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death.  One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case.  The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief.  The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).  Applying this standard, the Court concludes that due process compelled the justice’s recusal.

June 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Win for defendant (and a loss for Puerto Rico, I suppose) in SCOTUS Double Jeopardy case

An interesting array of opinions resulted today from the Supreme Court in an interesting case coming from Puerto Rico addressing Double Jeopardy protections. Justice Kagan wrote the Court's opinion in Puerto Rico v. Sanchez Valle, No. 15-108 (S. Ct. June 9, 2016) (available here); Justices Ginsburg and Thomas both authored concurring opinions, and Justice Breyer (joined by Justice Sotomayor) authored the chief dissent. Here is how the opinion for the Court gets started:

The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the “same offence.”  But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions — if it violates the laws of separate sovereigns.  To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question.  The inquiry does not turn, as the term “sovereignty” sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course.  Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins — or, said conversely, whether those powers derive from the same “ultimate source.” United States v. Wheeler, 435 U.S. 313, 320 (1978).

In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct.  We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.

Justice Breyer's dissent starts by explaing that his "reasons for disagreeing with the majority are in part conceptual and in part historical."

June 9, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21)

Wednesday, June 08, 2016

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures

Download (1)As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:

The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.

Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.

But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.

“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.

Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.

Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.

Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.

Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.

Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect.  While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.

Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.  “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.

June 8, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"My brain made me do it: will neuroscience change the way we punish criminals?"

The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience.  Here are excerpts:

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.  Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment.  According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...

[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour.  Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.  According to Greene and Cohen, this will make crime reduction the only goal.  If they are right, punishment practices will move in the direction advocated by Eagleman.

Greene and Cohen made their argument about the demise of retributivism ten years ago.  In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.  We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.  Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender.  It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert.  It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury".  The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....

We cannot be sure how neuroscience will affect the law in future.  Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.  This means retributivism is still alive and well, and just punishment still matters to Australian courts.  So, at least for now, the impact of neuroscience is not revolutionary.

June 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, June 07, 2016

"The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency"

The title of this post is the title of this notable new article authored by Aliza Plener Cover now available via SSRN. Here is the abstract:

The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty.  While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts.  This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013.  Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty.  These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black.  These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials.  Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"

This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:

Prosecutors are the most powerful players in the American criminal justice system.  Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.  So why is it so hard to keep them from breaking the law or violating the Constitution?

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.  It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.  There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.”  Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence.  Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.  

Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution.  This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard.  Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway.  Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.  This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing.  But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.  State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear.  Professional ethics boards rarely discipline them.  And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of.  Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices.  For the most part, the results have been positive.  Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.

Of course, many district attorneys’ offices will balk at being put under a federal microscope.  But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.

Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."

Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.

June 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?

The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:

For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.

Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to AL.com on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."

The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January.  The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....

At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.

A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests.  District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.

First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.

A few prior related posts:

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group

I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:

Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.

The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.

The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:

The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:

(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;

(2) Including in USSG §1B1.1 a definition of “court protection order;”

(3) Amending USSG §5H1.1 regarding the “age” policy statement; and

(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.

The TIAG recommends that the Commission adopt certain policy changes including:

(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;

(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and

(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

The TIAG also recommends that the Commission support changes in federal law and practice including:

(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;

(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;

(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;

(4) Better training of federal employees who work in Indian country about Native American history and culture; and

(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.

This Report provides the basis for and an explanation of these and other recommendations.

June 6, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

SCOTUS talks through PLRA's exhaustion requirement

The only criminal justice opinion handed down by the Supreme Court this morning concerned the application of the Prison Litigation Reform Act in Ross v. Blake, No. No. 15–339 (S. Ct. June 6, 2016) (available here). Justice Kagan wrote the opinion for the unanimous Court in Ross, which gets started this way:

The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions.  42 U. S. C. §1997e(a).  The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies.  Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.”  The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated below.

Because this is obviously a "modest" opinion (as was the other civil ruling SCOTUS released today), I suspect the SCOTUS press will be buzzing mostly about Texas capital case grants noted in this prior post.

June 6, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, June 05, 2016

"Deadly Statistics: Quantifying an 'Unacceptable Risk' in Capital Punishment"

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

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment ban on cruel and unusual punishment precludes capital punishment for intellectually disabled offenders.  Death-penalty states responded with laws defining intellectual disability in various ways.  In Hall v. Florida, the Court narrowly struck down the use of a measured IQ of 70 to mark the upper limit of intellectual disability because it created “an unacceptable risk that persons with intellectual disability will be executed.”  But the Court was unclear if not inconsistent in its description of an upper limit that would be acceptable. Four dissenting Justices accused the majority not only of misconstruing the Eighth Amendment, but also of misunderstanding elementary statistics and psychometrics.

This article uses more complete statistical reasoning to explicate the Court’s concept of unacceptable risk.  It describes better ways to control the risk of error than the Court’s confidence intervals, and it argues that, to the extent that the Eighth Amendment allows any quantitative cut score in determining an offender’s intellectual disability, these more technically appropriate methods are constitutionally permissible.

June 5, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, June 04, 2016

Could criminal defendants try to use GOP Prez candidate Trump's bias claims to bollix up prosecutions?

160601-trump-curiel-mn-1130_27cbe2a864fffd0c78aefb18f60a06c9I always try to stay open-minded about all people's political and personal perspectives, and I have thus to date been disinclined to think the worst about GOP Prez candidate Donald Trump and the prospect of him becoming the next President of the United States.  But I am quite troubled by Trump's recent attacks on a federal judge, and those attacks prompt the provocative question in the title of this post.  This new NPR piece, headlined "Trump Presses Case That 'Mexican' Judge Curiel Is Biased Against Him," provides the basic backstory:  

Donald Trump is intensifying his attacks on the federal judge presiding over fraud lawsuits against Trump University. On Friday the presumptive Republican presidential nominee, dismissing criticism from legal experts on the right and left, pressed his case against U.S. District Judge Gonzalo Curiel, saying the Indiana-born judge is biased against him because "he's a Mexican.  We're building a wall between here and Mexico."

Trump made the remarks, and others like it, repeatedly, in interviews with CNN and The Wall Street Journal, referring to Judge Curiel variously as "of Mexican heritage" or just "Mexican."  But the message was always the same, that the judge had what Trump called "a conflict" because of his ethnicity.

At a rally in San Diego last week, Trump characterized the judge as "a hater of Donald Trump, a hater. He's a hater." And "they ought to look into Judge Curiel."  In public, Trump has called repeatedly for the judge to recuse himself, but his lawyers in fact have not made any such request.

That is undoubtedly because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge.  If they were, lethal ethicists observe, the legal system would fall into chaos because no judge would be free from taint.  The five Supreme Court justices who are Catholic could not rule on a case in which the Catholic church participated, but neither could the other justices who are not Catholic.

Moreover, while Trump is free to say anything he wants about the judge, the lawyers in the case are bound by the professional rules of conduct and could be sanctioned for making such charges about Curiel without actual evidence of bias.  Legal ethics expert Stephen Gillers notes in addition that litigants may not wait to seek a judge's disqualification; they must move to recuse the judge as soon as they know there is a conflict.

Trump's lawyers, from the prestigious O'Melveny & Myers firm, however, have not done that. Indeed, some observers argue that the judge did the candidate a big favor by postponing the trial in the case until after the election. And Trump did not become bellicose about Curiel until the judge, at the request of news organizations, ordered the unsealing of documents in the case — documents that have proved embarrassing for the GOP presumptive nominee.

"This is not really about rebutting accusations that Trump University defrauded its students," said NYU's Gillers. Rather, it is a kind of dog whistle to supporters, "a way to keep the subject of illegal Mexican immigration on the front page."

Judge Curiel, appointed to the federal bench by President Obama, was born in Indiana, the son of Mexican-American immigrants. He served for 17 years as a federal prosecutor in California, rising to chief of narcotics enforcement in the southern district. In 1997 he was believed to be the target of an assassination attempt from a Mexican drug cartel, was put under 24-hour watch by the U.S. Marshall Service for a year, was moved to a military base and eventually to Justice Department headquarters in Washington, D.C.

I am not aware of any criminal defendants who have successfully sought disqualification of a judge (or a prosecutor) based solely on the basis of that judge's race, ethnicity, gender, religion and sexual orientation.  That said, I certainly have heard criminal defendants assert, like Donald Trump, that a prosecutor or a judge is biased on one of the bases.  And if repeatedly making such claims in public to serve a political or personal agenda is good enough for the GOP's Prez nominee, why couldn't a criminal defendant unhappy with how a prosecution is moving forward start making similar claims to serve his hew own agenda?

June 4, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Friday, June 03, 2016

Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence

Images (2)Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession.  And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week.  Here are the (somewhat mysterious) details:

One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.

The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.

Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.

In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.

But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”

A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”

I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.

A few of many prior related posts on Angelos and Holloway cases:

June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings.  And here we have another example:  this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana.  Here are excerpts: 

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump.  As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts.  If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Prior related posts about Gingrich's criminal justice reform advocacy:

June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 02, 2016

"Rich Defendants’ Request to Judges: Lock Me Up in a Gilded Cage"

The title of this post is the headline of this lengthy front-page New York Times article.  Here are excerpts:

Last October, Ng Lap Seng, a Chinese billionaire indicted on charges that he bribed the former president of the United Nations General Assembly, was granted bond of $50 million, secured by $20 million cash and a Midtown apartment where he would be confined and subjected to GPS monitoring and round­the­clock guards at his own expense.

Many thousands of people arrested in New York languish in the city’s jails because they are unable to make even modest bail. So advocates for prisoners and lawyers for indigent defendants say the idea that some defendants are able to stay out of jail because they have the means to finance a novel confinement plan is blatantly unfair.

“It just reinforces for me the point that our entire system of pretrial detention is predominantly based on wealth,” said Inimai M. Chettiar, a lawyer at the Brennan Center for Justice who runs an initiative to end mass incarceration. Joshua Norkin, a lawyer at the Legal Aid Society of New York, said the elaborate bail package that was being proposed for Mr. Zarrab and that was granted to Mr. Ng should remind judges in the state court system that they have the tools to release low-­income people “on alternative and more creative forms of bail, and they’re failing to do it.”

The cases of wealthy defendants’ receiving special bail conditions are not limited to international defendants. In 2009, Marc S. Dreier, a Manhattan lawyer who pleaded guilty to running an elaborate scheme that defrauded hedge funds and other investors of $700 million, was granted a $10 million bond pending trial and remained in his East Side apartment, secured by electronic monitoring and armed security guards, which his family paid for.

June 2, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense

Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:

Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”). 
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.”  He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”

Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon.  The government identified what it described as the “handful” that are “potentially relevant.”  The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption.  She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”

The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.”  Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.”  David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time.  As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.”  They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

Prior related post:

June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Wednesday, June 01, 2016

Examining the high costs of expungement process in some jurisdictions

The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes.  The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:

Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay.  But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.

While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach.  In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.

In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report.  Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies.  Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.

Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible.  Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive.  “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”

In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce.  Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund.  In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat.  At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.

Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.

June 1, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (4)