Friday, May 25, 2018

A few juicy SCOTUS relists (to temper the guideline-vagueness denials) for sentencing fans

Over at SCOTUSblog, John Elwood continues his yeoman's work via his "Relist Watch" postings which highlight cases that the Supreme Court considered but did not resolve during  recent certiorari review conferences.  In this week's installment of "Relist Watch," we get started with a review of the news, blogged here, that cert was (somewhat surprisingly) denied on oft-relisted vagueness challenges to pre-Booker mandatory application of career-offender guideline.  But thereafter we get the details on some interesting new additions to the relist watch that should intrigue criminal justice fans (with links from the original):

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States.  So long Allen v. United States17-5684; farewell Gates v. United States17-6262; auf Wiedersehen, James v. United States17-6769; adieu, Robinson v. United States17-6877; smell ya later Lester v. United States17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.  If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released....

Clark v. Louisiana16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola.  The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court.  Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.”  The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death.  The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going.  The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed.  Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases — ordinarily meaning the court moved them from one conference to another before considering them at conference.  Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, have been rescheduled nine times each — and both have been rescheduled even since they were relisted.  Lee v. Ohio17-7213, and Belton v. Ohio17-7233, have both been rescheduled four times.  So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence.  Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state– at least beyond the upbeat kind that just spell its name.  Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist.  In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent — just not the ones you think.  The petitioners in Lee v. Ohio17-7213, and Belton v. Ohio17-7233, both were convicted of killing people in botched robberies.  Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

May 25, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, May 23, 2018

Two great new long reads from The Marshall Project

The Marshall Project is for me a regular must-read: my weekdays mornings start most days with its "Opening Statement" email full of all sorts of original and linked criminal justice stories.  Many days I find the "Opening Statement" a bit frustrating because it has more amazing content than I have time to read, and this morning was especially challenging because there were these two original pieces that are lengthy and more than worth the time:

"The Billionaire's Crusade: Broadcom's Henry Nicholas is spending millions to give victims a bigger voice, but not everyone agrees."

An excerpt: Six states have now passed some version of Marsy’s Law, which Nicholas shaped and named for his murdered sister. He has spent upwards of $25 million so far, according to campaign filings, and plans to spend millions more in pursuit of his goal: to get the amendment passed across the country and ultimately, onto the U.S. Constitution.

He’s on his way. This November, the measure will be on ballots in five more states: Oklahoma, Nevada, Kentucky, Georgia and Florida. At least five additional states are considering putting Marsy’s Law before voters in upcoming election seasons — efforts backed almost single-handedly by Nicholas. The measure promises an equal voice for victims in a system where the rights of defendants are constitutionally guaranteed. “We can all agree that no rapist should have more rights than the victim,” the Marsy’s Law website says. It is meant to protect people who have suffered a good deal already, and its appeal to voters is obvious: who is against victims?

But however well-intentioned, Marsy’s Law is drawing criticism from some unexpected quarters, including prosecutors and some victims’ rights advocates.

"Prosecutor Elections Now a Front Line in the Justice Wars"

In most district attorney elections, the campaign playbook is clear: Win over the local cops and talk tough on crime. But in California this year, the strategy is being turned on its head.  Wealthy donors are spending millions of dollars to back would-be prosecutors who want to reduce incarceration, crack down on police misconduct and revamp a bail system they contend unfairly imprisons poor people before trial.

The effort is part of a years-long campaign by liberal groups to reshape the nation’s criminal justice system.  New York billionaire George Soros headlines a consortium of private funders, the ACLU and other social justice groups and Democratic activists targeting four of the 56 district attorney positions up for election on June 5.  Five other California candidates are receiving lesser support.

The cash infusion turns underdog challengers into contenders for one of the most powerful positions in local justice systems, roiling conventional law-and-order politics.  The challengers have matched or surpassed the millions of dollars, largely from police, prosecutors and local business, flowing to incumbents unaccustomed to such organized liberal opposition.

May 23, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"Capitalizing on Criminal Justice"

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

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

May 23, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, May 21, 2018

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

May 21, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

May 21, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, May 20, 2018

"Punishing Risk"

The title of this post is the title of this new article on SSRN authored by Erin Collins.  Here is the abstract:

Actuarial recidivism risk assessments — or statistical predictions of the likelihood of future criminal behavior — drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions.  Recently, this predictive approach to criminal justice has entered a new arena: sentencing.  Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country.  This enthusiasm is understandable.  Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.  In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone.  And yet, that is precisely how those who endorse actuarial sentencing — including the American Law Institute in the recently revised Model Penal Code for Sentencing — suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information.  This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences.  Specifically, it contends that this practice distorts, rather than refines, sentencing decisions.  Moreover, it may increase reliance on incarceration — and for reasons that undermine the fairness and integrity of the criminal justice system.

May 20, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, May 19, 2018

Noting the distinctive juve sentencing realities to face the Texas school mass murderer

Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers.  This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:

The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.

Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....

The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.

For an adult, that sort of crime could lead to the death chamber.  Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.

At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors.  Only a few states — including Texas —  were the outliers still carrying out death sentences for those convicted of crimes committed as minors....

Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said.  Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.

Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles.  The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.

Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future.  During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."

Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.

May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)

Thursday, May 17, 2018

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

May 17, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Wednesday, May 16, 2018

Encouraging findings from big study of 16 prosecutor-led diversion programs in 11 jurisdictions

I saw today a big report from a big National Institute of Justice study on the topic of diversion programs.  This big report has this full title: "NIJ’s Multisite Evaluation of Prosecutor-Led Diversion Programs Strategies, Impacts, and Cost-Effectiveness."  And here is part of its executive summary:

In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition. Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed. With funding from the National Institute of Justice, the current study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs....

Case Outcomes, Recidivism, and Cost

  • Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude.  All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).

  • Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth).  The fifth site did not change re-arrest outcomes.

  • Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings.  Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers.  All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.

Conclusions

There were a number of important study limitations, including a focus on 16 high-volume diversion programs mainly located in large jurisdictions, a smaller number of study sites for the impact and cost evaluations, and limitations in the scope and quality of quantitative data available in some of the impact sites.  Understanding these limitations, we generally found that today’s prosecutor-led diversion programs pursue a wide range of goals, not limited to rehabilitation and recidivism reduction.  We also found that these programs serve a mix of target populations — including felonies as well as misdemeanors and, in virtually all programs we examined, including defendants with a prior criminal record.  Although it bears noting that we evaluated program impacts in a limited number of sites, meaning that our findings may not be generalizable to other sites and programs that we did not study, our research yielded positive results. Across five programs in three sites, diversion participants benefited from a reduced likelihood of conviction and incarceration; and in four of the five programs, pretrial diversion participation led to reduced re-arrest rates.  In addition, in all four programs where a cost evaluation was conducted, diversion cases involved a lesser resource investment than similar comparison cases.

May 16, 2018 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"The Right to Two Criminal Defense Lawyers"

the title of this post is the title of this notable new article authored by Bruce Green now available via SSRN. Here is its abstract:

In conjunction with a symposium on “disruptive innovation in criminal defense,” this article proposes that indigent defendants be assigned two lawyers each of whom would have primary responsibility for different functions -- the “settlement lawyer” would have responsibility for the counseling and negotiating roles while the “trial lawyer” would be the principal advocate. 

The proposal to divide defense representation between two lawyers, as a potential “disruptive innovation”, provides an occasion to consider various problems associated with indigent defense apart from underfunding and excessive caseloads.  These problems relate to how some defense lawyers think about and structure their work, where they choose to direct their energy and how they prioritize their time, how they respond to incentives, preferences and even unconscious motivations, and how they relate to prosecutors, clients or others in the criminal process.  Whether or not a right to two lawyers is realistically achievable, the proposal provides a vehicle for contemplating deficiencies in criminal defense representation and potential responses.

May 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, May 15, 2018

Lots of juvenile sentencing developments as Oklahoma sorts through application of Miller

Last week brought interesting developments in the arena of juvenile sentencing in Oklahoma thanks to all three branches of the state government.   As this local article details, the Oklahoma legislature earlier this month passed, with some controversy, a new law to seeking to operationalize existing Eighth Amendment limits on LWOP sentences for juveniles:

Senate Bill 1221 would put sentencing for teen killers in the hands of a judge, not the jury that convicted them....  The bill passed Wednesday in the state Senate would require judges to determine sentencing based on a number of factors including the underage killers’ maturity, psych tests, and take jury’s out of the sentencing equation.

But some lawmakers cried foul. “We are going to circumvent an Americans right to equal protection under the law because the kid is 17 years old not 21,” said Senator AJ Griffin (R) Guthrie....  “It’s disrespectful to the citizens of this state that elected us and put us here in order to do our job. If an adult deserves a jury a kid deserves a jury,” Senator Griffin said.

As this excerpt indirectly reveals, because jury sentencing is the norm in Oklahoma, this new law would have created a distinctive judge-centric sentencing procedure just for juvenile murders in Oklahoma.  But before Oklahoma's Governor acted on this bill, the Oklahoma Court of Criminal Appeals (the state's highest criminal court) handed down a big new juve sentencing ruling in Stevens v. Oklahoma, 2018 OK CR 11 (Ok. Crim. App. May 10, 2018) (available here). Stevens is yet another notable example of another state court working through just how Miller and Montgomery should be applied, and it includes these notable passages (with most cites removed):

In all future trials where the State intends to seek a sentence of life without the possibility of parole for an offender who committed his or her offense under the age of eighteen (18) years of age the State shall give notice of this fact by stating at the bottom of the Information in bold type: "The State is seeking the punishment of life without the possibility of parole for the offense of Murder in the First Degree, as Defendant (state last name here) is irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full discovery on this issue in accordance with established discovery law. 22 O.S.2011, § 2001 et seq. The assigned trial judge has the authority under our Discovery Code to issue any orders necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be separately determined from the enhancement of his or her sentence.... [E]ach party shall be afforded the opportunity to present evidence in support of its position as to punishment in the second stage of the trial. The trial court shall submit a special issue to the jury as to whether the defendant is irreparably corrupt and permanently incorrigible....

It is the State's burden to prove, beyond a reasonable doubt, that the defendant is irreparably corrupt and permanently incorrigible. Luna, 2016 OK CR 27, ¶ 21 n. 11, 387 P.3d at 963 n. 11; see also Ring v. Arizona, 536 U.S. 584 (2002) (holding facts increasing punishment beyond the maximum authorized by a guilty verdict must be proven beyond a reasonable doubt). The State shall have the opportunity to present any evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403. Generally, this will include, but not be limited to, evidence concerning the defendant's: (1) sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and (7) the likelihood of the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962; Cf. 10A O.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489 ("[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and (3) whether the circumstances suggest possibility of rehabilitation." Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962 (quotations and citation omitted).

If the sentencer unanimously finds that the defendant is irreparably corrupt and permanently incorrigible it is then authorized to consider imposing a sentence of life without the possibility of parole.  If the sentencer does not make this finding it is prohibited from considering a sentence of life without the possibility of parole and may only impose a sentence of life imprisonment.

Notably, Oklahoma's Governor followed up all this activity by vetoing the bill that would allow for juvenile sentencing to be before a judge.  Gov Mary Fallin's veto statement here states:

Senate Bill 1221, also known as the Alyssa Wiles Juvenile Life Without Parole Sentencing Act, has provisions that, are in my opinion, in violation of the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 132 SCt. 2455, 183 L.Ed.2d 407. That decision was followed by the Oklahoma Court of Criminal Appeals in its decision rendered May 10, 2018, in Roberts A. Stevens v. The State of Oklahoma. Case No. PC-2017-219.

In case anyone cares, I believe there is at least a plausible argument that Apprendi jurisprudence does not demand that a jury make the essential "findings" that Miller and Montgomery seem to make constitutionally required under the Eighth Amendment for sentencing a juvenile to life without parole.  Readers with long memories may recall that I have long argued that Blakely's Sixth Amendment rule makes most sense only when applied to offense facts rather than to offender characteristics.  The Supreme Court has vaguely, but not conclusively, rejected such a conceptual distinction in the reach of the Sixth Amendment.  But even though I can see possible constitutional uncertainty as to how offender-eligibility factors are must be adjudicated under the Supreme Court's Sixth and Eighth Amendment jurisprudence, I think it may well be sound practice for these kinds of determinations to be given to juries (perhaps particularly in a state with a strong tradition of jury involvement in sentencing decision-making).

May 15, 2018 in Assessing Miller and its aftermath, Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, May 14, 2018

Interesting accounting of history and modern realities of victims' rights

The New Yorker has this notable lengthy new article authored by Jill Lepore under the headline "The Rise of the Victims’-Rights Movement: How a conservative agenda and a feminist cause came together to transform criminal justice."  The article covers lots history (with a particular focus on the importance of the Oklahoma City bombing) along with considerable law and policy (taking mostly a jaundiced view on victim rights). I recommend the piece in full, and here are a few excerpts:

Because victims’ rights is a marriage of feminism and conservatism, the logic behind its signal victory, the victim-impact statement, rests on both the therapeutic, speak-your-truth commitment of a trauma-centered feminism and the punitive, lock-them-up imperative of law-and-order conservatism.  Arguably, this has been a bad marriage....

Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.

How much evidence is enough, or too much?  Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless.  What kind of evidence is allowed?  Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.”  Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements.  Sorrow knows no bottom....

Thirty-two states have passed victims’-rights amendments; five more ballot initiatives may pass in November. Once enough states have acted, activists will again press for a federal amendment.  The last time the measure reached Congress, one of the prosecutors in the Oklahoma City bombing case argued against it (victims had tried to prevent one of McVeigh’s associates from signing a plea agreement in exchange for his testimony against McVeigh, which proved crucial in the trial).  [Paul] Cassell believes that there is much more work to be done.  The movement’s latest campaigns would expand the range of victim-impact evidence allowed in both capital and non-capital cases, and more strictly enforce victims’ rights that are already on the books.  In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing.  Tragedy is a fierce tailwind.  And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”

Critics remain.  Nancy Gertner, a former district-court judge from Massachusetts, is among those who have questioned Judge Aquilina’s conduct at Larry Nassar’s sentencing. Gertner told me, “The question is whether the victims needed that, as bloodletting, and the question is should the justice system allow that?  Or is it a throwback to public hanging?” Scott Sundby, a former prosecutor who studies capital juries, told me that the Nassar sentencing reminded him of Biblical punishments.  “Hey, we all get to pick up a rock and throw it at this person!”

May 14, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Among lots of CJ work, SCOTUS finds capital defendant's Sixth Amendment rights violated by counsel's unauthorized concession of guilt

The US Supreme Court got back to business this morning with a lot of notable activity in the criminal justice arena.  As noted in this prior post, there were a bunch of significant Dimaya GVRs.  In addition, the Court handed down five opinions in argued cases.  Four of the cases decided today involve criminal defendants, though the biggest of the rulings should also be of great interest to criminal justice fans as it addresses the relationship between federal prohibitions and state laws.  The federalism case, Murphy v. NCAA, No. 16–476 (S. Ct. May 14, 2018). (available here), may be of particular interest to advocates for state-level marijuana reforms, and I have this initial post on that case over at Marijuana Law, Policy & Reform.

Criminal procedure is the focal point of the four other SCOTUS cases handed down this morning: Byrd v. United StatesDahda v. United StatesMcCoy v. LouisianaUnited States v. Sanchez-Gomez.  This alphabetic list of these four rulings may also roughly approximate their order of importance/significance, though I welcome reader input on whether there are some important elements to a set of decisions that all seem somewhat narrow and fact-specific.  The ruling that may be of greatest interest to sentencing fans in McCoy, which split the Court 6-3 and starts with these paragraphs from Justice Ginsburg writing for the Court:

In Florida v. Nixon, 543 U.S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects,” id., at 178.  In that case, defense counsel had several times explained to the defendant a proposed guiltphase concession strategy, but the defendant was unresponsive. Id., at 186.  We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, id., at 181, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy, id., at 192.

In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. App. 286–287, 505–506.  Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” Id., at 509, 510.  We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands.  With individual liberty — and, in capital cases, life — at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.

May 14, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

A couple dozen Dimaya GVRs in federal criminal cases in latest SCOTUS order list

The US Supreme Court this morning handed down this order list, and criminal justice fans should take notice of the significant number of federal criminal cases in which certiorari is granted followed by the "judgments are vacated, and the cases are remanded to the United States Court of Appeals ... for further consideration in light of Sessions v. Dimaya." 

Based on a quick scan, it would appear that SCOTUS has now "GVRed" at least one of every type of post-Dimaya case that John Elwood flagged in this SCOTUSblog "Relist Watch" post a few weeks ago (though in one case it appears SCOTUS said the GVR was to allow further consideration in light of Beckles).

Long story short: the fall-out from the Dimaya vagueness ruling seems likely to take many months (perhaps years) and many rulings to sort out.  Of course, I said this same thing about the Johnson vagueness ruling in 2015, and Dimaya et al three years later is really just itself one big part of the post-Johnson fall-out.  And because Johnson was fundamentally the product of the late Justice Scalia's continued railing against the residual clause of the Armed Career Criminal Act, the long tail of the Johnson/Dimaya jurisprudence serves as an interesting (and perhaps never-ending) part of his constitutional legacy.

May 14, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Saturday, May 12, 2018

"Predatory Public Finance and the Evolution of the War on Drugs"

The title of this post is the title of this new paper authored by Bruce Benson and Brian Meehan now available via SSRN. Here is the abstract:

US drug policy has a long history of providing revenue for federal, state, and local governments.  Before the War on Drugs, opium and cocaine were legal and medical professionals who prescribed these substances had to pay extra taxes to do so.  This chapter explains how, as the federal government began enforcing outright bans on drugs, law enforcement agencies took advantage of their newly acquired authority to profit.

Today, civil asset forfeiture related to drug crimes provides officers with incentives to use and abuse their authority and increase their revenue by making more drug arrests.  Key takeaways: (1) Drug policy has a long history of providing law enforcement with increased revenues and authority over time. (2) Law enforcement agencies may be targeting the crimes that present the opportunity to raise revenue for their departments rather than the most serious public safety threats.

May 12, 2018 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, May 10, 2018

Oregon Supreme Court upholds 112-year aggregate sentence for juve mass murderer Kip Kinkel

A helpful reader made sure I did not miss the notable Oregon Supreme Court's ruling today in Kinkel v. Persson, 363 Or 1 (Oregon May 10, 2018) (available here). The defendant in this case, Kip Kinkel, is a high-profile juvenile offender because back in 1998, at age 15, he killed his parents and then the next day at his high school shot two classmates and wounded 25 others.  The start of the Oregon Supreme Court majority opinion explains the sentencing proceedings and the court's ruling: 

Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder.  As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders.  They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently.  After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner’s aggregate sentence totals slightly less than 112 years.

In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues.  The first is whether, as a matter of state law, petitioner’s Eighth Amendment claim is procedurally barred.  See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) (applying a related statute).  If it is, the second issue is whether Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016), requires this court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar.  Third, if petitioner’s Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.

As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim fails on the merits.  More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide.  The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth.  The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate consecutive sentence that is the equivalent of life without the possibility of parole.  This case thus poses a different issue from the issue in Miller.  Beyond that, we conclude that the facts in this case, coupled with the sentencing court’s findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.

May 10, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, May 09, 2018

Lots of sentencing fun — thanks to enduring Johnson fallout — to be found in cert pool relists

The Justice of the Supreme Court will have a conference tomorrow to discuss cert petitions, and that means John Elwood has another of his always valuable "Relist Watch" posts up at SCOTUSblog. This version of relists has lots that should interest sentencing fans, and I will reprint those parts here:

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else....

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again.  The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times).  This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move.  Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue.  This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals.  But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States17-7521.  Neither of the issues it presents is very promising.  First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute.  But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits.  The other issue the petition raises — whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun — is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

May 9, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments

As reported in this article from The Hill, the House Judicial Committee "on Wednesday approved a new prison reform bill being pushed by the White House."  Here are some details:

The bill, called the First Step Act, seeks to offer more funding for prison programs in an attempt to reduce an inmate’s likelihood to re-offend after they’ve been released. The House Judiciary Committee approved the bill, by a 25-5 vote, that Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) spent the last week negotiating after committee Democrats pushed back against a number of conservative provisions.

In the legislation now advancing to the House, lawmakers removed language that would have allowed certain law enforcement officials and correctional officers to carry a concealed firearm in all 50 states and created more opportunities for prisoners to earn time credits by completing prison programs. They can then use those credits to serve the remaining days of their sentence in a halfway house or home confinement.

The bill, which authorizes $50 million a year for five years for the Bureau of Prisons to spend on programs like job training and education that reduce recidivism, clarifies current law to allow prisoners up to 54 days of credit for good behavior annually. The law was previously interpreted as only allowing prisoners to earn 47 days a year.

The previous bill, known as the Prison Reform and Redemption Act, and the current compromise, however, have divided Democrats and liberal groups. While #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, is now backing the new bill, the measure is still opposed by the Leadership Conference on Civil and Human Rights and 73 other groups.

Democrats and progressive groups argue the criminal justice reform bill should include provisions that reduce mandatory minimum prison sentences. Rep. Jerry Nadler (D-N.Y.), the committee’s ranking member, said the bill is well-intentioned but the committee should be working on legislation that includes sentencing reform. He offered a motion to postpone the markup by one month to give committee members time to negotiate and markup sentencing reform legislation.... Nadler’s motion was [after discussion] voted down by the committee.

Progressives were able to win language prohibiting female prisoners from being shackled during pregnancy, childbirth and up to 12 weeks after a baby is born. But the committee voted down an amendment Rep. Sheila Jackson Lee (D-Texas) offered to create a pilot program in federal prisons to allow female inmates who give birth while behind bars to live with their child in a prison housing unit until the child is two-and-a-half years old.

The committee, however, approved an amendment from Rep. Matt Gaetz (R-Fla.) to expand a pilot youth mentorship program and a pilot program that gives prisoners the skills to train rescue and abandoned dogs. The bill would take the programs from two years in 10 facilities to five years in at least 20 facilities.

Rep. Louie Gohmert (R-Texas) also had an amendment approved that would prevent faith-based organizations that want to offer prison programming from being discriminated against.

A bipartisan amendment from Rep. Cedric Richmond (D-La.), Collins, Jackson Lee, Jeffries and Val Demings (D-Fla.) was also approved to clarify that the legislative fix, which makes prisoners eligible for 54 days of good time instead of 47, applies to prisoners already serving sentences....

Collins said he’s confident there’s enough Democratic support to get the bill through the House and the Senate. “They have their own process to go through. There may be some issues that we can then work on later, but I do feel this is one of the pieces of legislation that will be signed into law this year,” he said.

The House Judiciary Committee has this press release about the vote and key provisions of the bill under the heading, "House Judiciary Committee Approves Bill to Reform the Federal Prison System."  Though not mentioned in these reports, I believe all the Republican votes coming from the committee were in favor of this FIRST STEP bill except for Rep. Steve King from Iowa, and also that a majority of the Democrats in the committee also voted for the bill (though Ranking Member Jerry Nadler and Rep. Sheila Jackson Lee were among the notable "No"s).

All of this suggests to me a reason to be optimistic that there might really be some notable federal criminal justice reform getting done in 2018.  It is less than I would like to see, but I still think it would be MUCH better than nothing. 

Some of many prior related posts:

May 9, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Detailed review of Illinois juve offenders serving just barely "less than life"

Less-than-life-featureThe Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life.  Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody."  Here is an excerpt:

In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.

A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)

The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.

Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.

Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.

The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.

There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.

Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.

May 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Saturday, May 05, 2018

Scrutinizing sex offender civil commitment schemes

Investigative reporter Barbara Koeppel has this extensive article in The Washington Spectator under the full headline "Sex Crimes and Criminal Justice: Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation."  I recommend the piece in full, and here are excerpts from the start and end of the article:

Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.  If the decision is yes, the men are re-incarcerated—not for past crimes but for ones they might yet commit — in prisonlike facilities with barbed wire, cells, guards, and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.

The practice is known as civil commitment.... Supporters of the process argue it protects the public.  Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.”  Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public, and sex with underage partners, all the way up to rape and murder.

Organizations and professionals familiar with the abuses of civil commitment are its harshest critics.  The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.”  Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.”  But the practice persists at huge cost to individuals and taxpayers....

The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences.  Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences — which could be 20 or 25 years — yet were made to start from scratch in the civil commitment facilities.

Today, about 5,400 men are held in civil commitment. [Lawyer Donald] Anderson told me, “It’s hard to wrap my head around it.  I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears.  But I’ve dealt with these guys for years and I’m very fond of some of them.  Their look of being utterly beaten, knowing they’ll be here until they die, is very sad.  The program is inhumane.”

May 5, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16)

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Friday, May 04, 2018

"Judicial Appraisals of Risk Assessment in Sentencing"

The title of this post is the title of this notable new paper now available via SSRN authored by John Monahan, Anne Metz and Brandon Garrett.  Here is the abstract:

The assessment of an offender’s risk of recidivism is emerging as a key consideration in sentencing policy in many American jurisdictions.  However, little information is available on how actual sentencing judges view this development.  This study surveys the views of a population sample of judges in Virginia, the state that has gone farther than any other in legislatively mandating risk assessment for certain drug and property offenders. Results indicate that a strong majority of judges endorse the principle that sentencing eligible offenders should include a consideration of recidivism risk.  However, a strong majority also report the availability of alternatives to imprisonment in their jurisdictions to be inadequate at best.  Finally, most judges oppose the adoption of a policy requiring them to provide a written reason for declining to impose alternative interventions on “low risk” offenders.

May 4, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1)

Thursday, May 03, 2018

Oregon Supreme Court orders resentencing upon finding violation of crime victim's right to be heard at sentencing

The Supreme Court of Oregon handed down an interesting unanimous opinion yesterday concerning the rights of a victim at sentencing under the Oregon Constitution in Oregon v. Ball, 362 Or 807 (Or. May 2, 2018) (available here). Here is how the opinion gets started:

The Oregon Constitution provides that the victim of a crime has the right “to be heard at * ** sentencing.” Or Const, Art I, § 42(1)(a).  Appellant, who is a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. Specifically, appellant alleged that the trial court violated her right to be heard when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation.  The trial court denied the claim, and appellant brought this appeal, pursuant to ORS 147.535.

This case requires us to determine the scope of a crime victim’s constitutional right to be heard during a sentencing hearing.  As explained below, we hold that a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative.  In addition, a trial court may limit a victim impact statement if the victim disregards the trial court’s appropriate instructions regarding the content or length of the statement.  We further hold that, in this case, the trial court’s interruptions of appellant’s statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant’s right to be heard.  However, the trial court’s termination of appellant’s statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant’s right to be heard.  Therefore, we reverse the trial court’s decision denying appellant’s claim, vacate defendant’s sentence, and remand the case to the trial court for a new sentencing hearing.

May 3, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (1)

An uncertain execution stay for uncertain reasons from the Georgia Board of Pardons and Paroles

As reported in this AP piece, "Georgia's parole board on Wednesday issued a decision halting the scheduled execution of a condemned inmate less than 24 hours before he was set to be put to death." Here is more about the decision that strikes me as full of uncertainties:

Robert Earl Butts Jr., 40, had been scheduled to die at 7 p.m. Thursday at the state prison in Jackson.  The State Board of Pardons and Paroles issued its decision just before 8:30 p.m. Wednesday to grant a stay of up to 90 days to give board members more time to consider the case.

"Due to the considerable amount of additional information the Board has received regarding the case and because the Board understands the importance and seriousness of its authority and responsibility, a stay was issued," board spokesman Steve Hayes said in an emailed statement....  The board could issue a final decision in the case during the stay period or at the end of the 90 days, Hayes said. 

Earlier Wednesday, the board held a closed-door hearing to listen to arguments for and against clemency for Butts.  A judge in the Superior Court of Baldwin County, where Butts was sentenced to death, last month issued the order for the execution to be carried out within a window starting Thursday and ending May 10.  If the board decides to lift the stay and denies clemency within that period, the execution could go forward without a new execution order.

The board also has the option to commute Butts' death sentence to a sentence of life in prison with or without the possibility of parole.

Butts and Marion Wilson Jr., 41, were convicted of murder and armed robbery in the March 1996 slaying of Donovan Corey Parks in central Georgia.  The two men asked Parks for a ride outside a Walmart store in Milledgeville and then ordered him out of the car and fatally shot him a short distance away.  Prosecutors have said Butts fired the fatal shot.

Authorities said Butts and Wilson were gang members who had gone looking for a victim when they drove Butts' car to the Walmart store.  Juries in separate trials found sufficient evidence to sentence both men to death because Parks was killed during the commission of an aggravating felony, armed robbery.  Wilson's case is still pending in the courts.

Butts' attorneys had asked the parole board in a clemency application filed last week to spare his life.... His attorneys insisted in the clemency application that Butts wasn't the shooter. A jailhouse witness, Horace May, who testified at trial that Butts confessed to being the shooter has now signed a sworn statement saying he made the story up out of sympathy for Wilson, whom he also met in jail....

Butts' attorneys also argued in his clemency petition that the single aggravating factor wouldn't warrant a death sentence in Georgia today.  They also ask the board to consider commuting Butts' sentence to life in prison after weighing abuse and neglect during Butts' childhood, the fact that he was just 18 when the crime occurred and that he has expressed remorse.

Butts' lawyers submitted a supplement to the clemency application to the board at the clemency hearing Wednesday. In that supplement, they argued that evidence in the case indicates that Wilson consistently had possession of the gun used to kill Parks. They also said there's no evidence that Butts was a member of a gang or that Parks' killing was gang-related. They wrote that the fact that the two tried to sell the car at a chop shop shows the crime was financially motivated.

Because Georgia sets a week for an execution time, it seem possible that the clemency petition will be denied in the coming days and the execution still goes forward. Thus, I find it uncertain whether this stay connotes a real likelihood that this defendant will avoid execution in the coming day. And that uncertainty is itself built on top of uncertainty about what the Georgia Board might be finding troubling in this case.  Notably, this local article provides this account of the last time this kind of stay was granted and its aftermath: "The last time the board stayed an execution was on April 17, 2012. Daniel Green was scheduled to be executed for a 1991 Taylor County murder. The board commuted Green’s sentence to life without parole on April 20, 2017."

May 3, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"The Opioid Crisis and Federal Criminal Prosecution"

The title of this post is the title of this timely new article recently posted to SSRN authored by Rachel Rothberg and Kate Stith. Here are parts of its introduction:

An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales.  We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard....

What role can criminal law — and those who enforce it — play in combatting the opioid crisis?  The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths.  As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids — sometimes unwittingly.  In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.

In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice in Washington, D.C.  In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices.  There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the Department of Justice, each one is semi-autonomous in deciding which cases to investigate and prosecute.

Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut.  We focus on the Office’s two main strategies— (1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage — and discuss whether they have implications for the national role of federal law enforcement.  Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.

May 3, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, May 02, 2018

"Revisiting the Role of Federal Prosecutors in Times of Mass Imprisonment"

The title of this post is the title of this recent article authored by Nora Demleitner recently posted to SSRN. Here is the abstract:

The article highlights how the Department of Justice and its leadership can change even long-standing prosecutorial orthodoxy and prevailing approaches when they set out a clear mission and empower and guide prosecutors in implementing it.  To decrease the number of federal prisoners, the Obama administration adopted a tri-partite strategy that included prevention and re-entry, co-equal with prosecutions.  Yet the collection and analysis of relevant data continued to fall short which privileged old practices that emphasized the number of convictions and prison years imposed.

A substantial investment in data is needed to support and reinforce a shift away from prison terms.  Perhaps most importantly, the article questions the role federal prosecutors should play at a time prisons remain overcrowded despite a historically low crime rate.  The criminal justice paradigm may not be an appropriate avenue for addressing social problems.

May 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, May 01, 2018

Feds forego capital prosecution for airport mass murderer, allowing guilty plea to LWOP

This new local article from Florida, headlined "Airport shooter Esteban Santiago to plead guilty, spend life in prison," highlights how (jury) sentencing discretion and other procedural rights in capital cases can impact how prosecutors approach charging and bargaining even in horrible murder cases.  Here are the details (with my emphasis added), with a bit of commentary to follow:

Esteban Santiago, the man who confessed to fatally shooting five people and wounding six at Fort Lauderdale’s international airport, has agreed to plead guilty and spend the rest of his life in federal prison.

Prosecutors have accepted his offer and are not seeking the death penalty but the judge first wants Santiago to undergo a mental health evaluation to make sure he’s legally competent to plead guilty.

The decision takes a very expensive and potentially long and emotional trial — followed by years of appeals — off the table.  Santiago’s documented history of severe mental illness, the fact that he went to the FBI and asked for help two months before committing the mass shooting, his willingness to plead guilty and his military service in the Iraq War were likely among the top factors that affected the decision, experts said.

Santiago, 28, had pleaded not guilty to a 22-count indictment in the Jan. 6, 2017 mass shooting at Fort Lauderdale-Hollywood International Airport.  Ten of those charges carried a potential death sentence or life in federal prison. His change-of-plea hearing is expected to be scheduled in the next several weeks in federal court in Miami.

Both sides are due back in court May 23 for a competency hearing with U.S. District Beth Bloom. If the judge is satisfied that Santiago is mentally competent, she would then allow him to plead guilty....

He was briefly hospitalized for psychiatric care in Alaska in November 2016, two months before the shooting. He had driven to the FBI office in Anchorage, asked for help and told agents he was hearing voices and thought the government was controlling his mind.

After Santiago surrendered at the airport, FBI agents said he confessed and told them he was “programmed” to act under government mind control. Later in the interview, he said he was inspired by the Islamic State extremist group, but authorities said no terrorism links have been found.

Though the line highlighted above tells a big part of the story, I still find myself left wondering about what factors played a central role in the sentencing decision-making of federal prosecutors here. I wonder if many or even most of the victims/family members supported this decision to forego a capital prosecution (and also wonder if they at all troubled that this critical decision lingered for 16 months from the time of this awful crime). I also wonder if prosecutors, perhaps concerned about a possible insanity defense and criticisms of mental health care given to veterans, we not even confident about getting a guilty verdict, let alone a death sentence, were this case to go to trial.

Whatever the reasons for the feds decision-making here (which will remain hidden and are essentially unreviewable), this case helps reveal the range of forces that necessarily place brakes on any efforts by the Trump Administration and Attorney General Sessions to make significantly more use of the death penalty.  A mass shooting in an airport of nearly a dozen people with five deaths would seem to be a textbook example of a "worst-of-the-worst" offense.  But because the defendant can make the case that he is not a worst-of-the-worst offender, federal prosecutors (in a pro-death penalty state) are not even willing to try to secure a death sentence.  

May 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, April 30, 2018

New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges

Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence.  The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts.  Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.  They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction.  It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

April 30, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, April 29, 2018

"Why Bill Cosby may not spend any time in prison"

The title of this post is the title of this lengthy new CNN article that provides a review of some of what we can now expect in the case of Pennsylvania v. William Henry Cosby, Jr. in the wake of his convictions this past week.  Here are excerpts:

Based on his conviction this week on three assault charges, comedian and TV star Bill Cosby could be sentenced to 30 years in prison.  But legal experts said the 80-year-old certainly will spend less time than that behind bars, and there's a very real possibility that he may not ever be incarcerated.

Why?  Well, it's mostly to do with his defense team's plan to appeal the guilty verdict -- likely on the grounds that the decision to allow five other accusers to testify in the trial unfairly prejudiced the jury.

Cosby's attorney, Tom Mesereau, will probably ask the court that his client be given home confinement during the appeal, which could take months or even years, CNN legal analyst Joey Jackson said.  "I think he'll ask the court and do whatever he needs to, to have his client remain out at liberty until these issues are decided, whether it was appropriate to allow all those accusers to testify, and how prejudicial and unfair would that be," Jackson said.

The decision on Cosby's bail is up to Montgomery County Judge Steven T. O'Neill, who oversaw the case.  His prior rulings suggest he may allow Cosby to remain on home confinement.  On Thursday, O'Neill dismissed the prosecution's plea to revoke Cosby's $1 million bail and remand him to jail. "I'm not simply going to lock him up right now," the judge said, citing his age and his track record of appearing at every hearing for two and a half years....

For now, Cosby is not permitted to leave his Pennsylvania home. If he does leave the state for another home, it would have to be arranged ahead of time and he would have to wear a GPS monitoring device, the judge ruled.  If O'Neill does allow Cosby to remain free during appeals, and the legal action lasts for years, then there's a question of whether the comedian's age and health will make that sentence moot....

Though Cosby faces a maximum of 30 years in prison, Montgomery County District Attorney Kevin Steele indicated he would not press for that sentence.  "He was convicted of three counts of (indecent assault), so technically that would be up to 30 years.  However, we have to look at a merger of those counts to determine what the final maximum will be," Steele said.

Legal analyst Areva Martin said the judge's rulings so far suggest he will give Cosby a much reduced sentence. "I think the fact that the judge yesterday allowed him to walk out of that courtroom, did not remand him immediately to jail, gives us a sense about what this judge is likely to do when he gets to the sentencing hearing," she said.

Judges can take any number of mitigating factors into consideration when issuing a sentence, she explained. "He will be able to take into consideration Cosby's age, the status of his health, the philanthropic work that he's done over the last several decades, the fact that this is his first criminal conviction -- all of those will be factors that the judge can take into consideration when sentencing him."

A sentencing hearing has not yet been scheduled.

Some women who say they were also assaulted by Cosby believe he should spend time in prison. "I believe that it's essential he spend time in jail and it wouldn't break my heart to see him spend the rest of his life in jail," Janice Baker-Kinney said Friday.

But ultimately, the length of his sentence would not change his guilty conviction. "Whether he ends up serving time in jail or if he dies during the appeals process, that doesn't remove the fact that he has been convicted," [Professor Michelle] Dempsey said. "That's definitely an important moment in history."

Prior related post:

April 29, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12)

First ripple of Dimaya disruptions appears in SCOTUS relists

In this post the day after the Supreme Court's big ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), I asked "How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?".  Though not providing a direct answer to this question, this most recent Relist Watch posting by John Elwood over at SCOTUSblog reinforces my sense that the Dimaya disruptions are likely to be plentiful and complicated. Here are amusing excerpts from John Elwood's post (with links from the original):

We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities.  But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages. 

The Dimaya relists fall into three main groups.  First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena15-1494Sessions v. Lopez-Islava15-1496, Sessions v. Miranda-Godinez16-398Sessions v. Baptiste16-978Sessions v. Shuti16-991Gonzalez-Longoria v. United States16-6259Solano-Cruz v. United States16-6288Perdomo v. United States16-7214Bello v. United States16-7667Alvaro-Velasco v. United States16-8058Castaneda-Morales v. United States16-8734Maldonado-Landaverde v. United States16-9318Linares-Mazariego v. United States16-9319Larios-Villatoro v. United States16-9660, Diaz-Esparza v. Session17-820Gomez-Ureaba v. United States17-5283Garcia-Hernandez v. United States17-5305Hernandez-Ramirez v. United States17-6065Ontiveros-Cedillo v. United States17-6721Gutierrez-Lopez v. United States17-6751Casabon-Ramirez v. United States17-7183, and -- so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States17-6680.  These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.

The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision -- a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara16-617Aguirre-Arellano v. United States16-8675and Rodriguez v. United States17-5476, as well as returning relist Robinson v. United States17-6877.

The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.”  This week’s new relists that involve that question include Taylor v. United States16-6392Prickett v. United States16-7373Glover v. United States16-8777Taylor v. United States16-8996Davis v. United States16-8997United States v. Jenkins17-97United States v. Jackson17-651McCoy v. United States17-5484Winters v. United States17-5495Lin v. United States17-5767Eizember v. United States17-6117Enix v. United States17-6340Ecourse-Westbrook v. United States17-6368, and Carreon v. United States17-6926.  The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues.  Unsurprisingly, criminal defendants argue that the court should just grant review on this issue.  We’ll see which side prevails.

Prior related post:

April 29, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Friday, April 27, 2018

"Death Qualification in Black and White: Racialized Decision Making and Death‐Qualified Juries"

The title of this post is the title of this new paper authored by Mona Lynch and Craig Haney now available via SSRN. Here is its abstract:

Death qualification has been shown to have a number of biasing effects that appear to undermine a capital defendant's Sixth Amendment right to a fair jury.  Attitudes toward the death penalty have shifted modestly but consistently over the last several decades in ways that may have changed the overall impact of death qualification.  Specifically, the very large gap between black and white Americans' current support for capital punishment raises the question of whether death qualification procedures disproportionately exclude African Americans from capital jury participation.

In order to examine this possibility, we conducted two countywide death penalty attitude surveys in the California county that has the highest percentage of African American residents in the state.  Results show that death qualification continues to have a number of serious biasing effects — including disproportionately excluding death penalty opponents — which result in the significant underrepresentation of African Americans.  This creates a death‐qualified jury pool with the potential to be significantly more likely to ignore and even misuse mitigating factors and to rely more heavily on aggravating factors in their death penalty decision making.  The implications of these findings for the fair administration of capital punishment are discussed.

April 27, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Tuesday, April 24, 2018

The challenge of modern federal sentencing: "there are 15 distinct factors in 3553(a)"

The line in quotes in the title of this post is a phrase that was uttered yesterday by Deputy Attorney General Rod Rosenstein during Supreme Court oral argument in Chavez-Meza v. United States. (The full argument transcript is available at this link.)  Based on my review of the transcript, I think DAG Rosenstein did himself proud before SCOTUS, and I am especially proud of his accounting of the many factors in 18 USC § 3553(a).

Specifically, I am keen on this accounting of the 3553(a) factors because I have long preached that there are four distinct sentence factors packaged in 18 USC § 3553(a)(1), which calls upon courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  Often when talking to students about a sentencing problem I give, I stress that plain text of § 3553(a)(1) indicates Congress wants judges to consider distinctly an offense's nature (drugs or fraud) as well as its circumstances (lengthy or limited); to consider distinctly a defendant's history (abused or educated) as well as his characteristics (remorseful or brazen).  I think DAG Rosenstein's statement that "there are 15 distinct factors in 3553(a)" is built upon counting § 3553(a)(1) as itself having four factors.

Moving beyond my own quirky affinity for § 3553(a)(1), I wonder if readers can readily think of any other area of federal law that calls upon judges to consider "15 distinct factors" as part of their decision-making.  I do realize that many capital sentencing statutes call upon juries and/or judges to balance or weigh even more factors that appear in 18 USC § 3553(a).  But I would be especially eager to hear from folks about other areas of law that but a comparable factor burden on federal judges.

April 24, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, April 22, 2018

SCOTUS to hear seemingly small sentencing case made slightly bigger by Government's advocate

On Monday afterneed the Supreme Court will hear oral argument in Chavez-Meza v. United States.  Here is the issue presented in the case (via SCOTUSblog):

Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

As this statement of the issue reveals, the Supreme Court likely was inclined to add this case to its docket in order to resolve a circuit split over just want amount of explanation is required when judges grant sentence modifications under 18 U.S.C. § 3582(c)(2).  But, it appears that only six months of a nine-year prison term is at issue in this case and, as Susan Klein explains via her SCOTUSblog argument preview, it seems unlikely that even a win for the defendant would be all that consequential for others:

I predict that whatever the Supreme Court does in this case will have little effect beyond amending future sentencing modification forms. A reversal would likely result in little more than a “ritualistic incantation” by the judge that she considered a specific Section 3553(a) factor, or that she considered a specific policy statement issued by the sentencing commission.

Of course, SCOTUS could always decide to use this case to talk up the importance of sentencing explanations, though I doubt even an opinion written with great ambition in this matter would have too much of an impact.  And still, though seemingly a small case, Chavez-Meza is getting an extra bit of attention because the Deputy Attorney General will be arguing the case on behalf of the feds.  This new Wall Street Journal article, headlined "Rosenstein Takes a Pause — to Argue a Case Before the Supreme Court," looks at this angle of the case.  (Last but not least, hard-core Breaking Bad fans might get a weird kick out of the fact that Adaucto Chavez-Meza "distributed methamphetamine in Albuquerque, New Mexico," though a bit later than when Walter White was supposedly cooking up the Blue Sky variety in that part of the world.)

April 22, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Saturday, April 21, 2018

"Techno-Policing"

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

In July 2017, the New York Times reported that Three Square Market, a Wisconsin based technology company, was asking its employees to have a microchip injected between their thumb and index finger.  More than half of the employees consented to the implant, which would function as a type of swipe card.  As one employee put it, “In the next five to 10 years, this is going to be something that isn’t scoffed at so much, or is more normal.  So I like to jump on the bandwagon with these kind of things early, just to say that I have it.”

What might the implanting of microchips portend for criminal justice issues?  Might we one day implant chips in convicted felons, or arrestees?  Or if not all arrestees, perhaps those released on bail?  Indeed, at a time when many scholars and legislators are rethinking bail, might the availability of removable chips strengthen the argument against pretrial detention, and against money bail?  And what are the implications for sentencing, especially algorithmic risk-based sentencing?  Or perhaps a closer fit, what are the implications for releasing defendants who have completed their sentences and are eligible for parole? 

At a time when the Court has given its blessing to civil commitment for sex offenders, how might the availability of microchips to monitor the coming and going of individuals — like a wireless fence — change the analysis?  Finally, and perhaps most central to this essay, what are the possibilities when we couple the availability of microchips with access to Big Data?  This short essay, written for the “Big Data and Policing” symposium issue of the Ohio State Journal of Criminal Law, begins a conversation about these and other questions.

April 21, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

"Most people will flip if the Government lets them out of trouble, even if.... ....it means lying or making up stories"

The quote in the title of this post is a sentence that could (and likely has been) articulated in some variation by many defendants and defense lawyers.  And it reflects one reason (of many) that mandatory minimum sentences and other severe sentencing can be so worrisome: by threatening mandatory and severe sentences, the government can place even more pressure on people to flip through "lying or making up stories" to try to get "out of trouble."

The particular articulation of these concerns in this post title comes from a pair of tweets authored by President Donald J. Trump on the morning of April 21, 2018.  I am not at all optimistic that President Trump will carry his (self-serving) concerns about persons "lying or making up stories" over to his policy positions on federal criminal justice reform or to his consideration of clemency petitions.  But I am still hopeful that tweets like these may lead some of President Trump's most ardent supporters to become ever more skeptical of all forms of government, including the tools of law enforcement that are so regularly used (and sometimes abused) in the federal criminal justice system. 

And, in related news reported by the Washington Post, it appears AG Jeff Sessions has suggested that he would not stay on as Attorney Genera if his Deputy AG were let go by Prez Trump:

Attorney General Jeff Sessions recently told the White House he might have to leave his job if President Trump fired his deputy, Rod J. Rosenstein, who oversees the investigation into Russian interference in the 2016 election, according to people familiar with the exchange.

Sessions made his position known in a phone call to White House counsel Donald McGahn last weekend, as Trump’s fury at Rosenstein peaked after the deputy attorney general approved the FBI’s raid April 9 on the president’s personal attorney Michael Cohen.

April 21, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, April 20, 2018

Effective (and depressing) report on compassionate release (or lack thereof) in Wisconsin and nationwide

Gina Barton of the Milwaukee Journal Sentinel has this terrific (and lengthy) piece on compassionate release programs titled "Release programs for sick and elderly prisoners could save millions.  But states rarely use them."  I recommend the full piece, and here is how it gets started:

A Wisconsin program that allows elderly and severely ill prisoners to be released early from prison could save state taxpayers millions of dollars a year.  But thousands of the state’s elderly prisoners — many of whom prison officials acknowledge pose little or no risk of committing new crimes — aren’t allowed to apply, a Milwaukee Journal Sentinel investigation found.

More than 1,200 people age 60 and older were serving time in Wisconsin prisons as of Dec. 31, 2016, the most recent count available.  By one estimate, the average cost to incarcerate each of them is $70,000 a year — for an annual total of $84 million.  Last year, just six inmates were freed under the program.  Among those who didn’t qualify were a blind quadriplegic and a 65-year-old breast cancer survivor who uses a breathing machine and needs a wheelchair to make it from her cell to the prison visiting room.

Around the country, early release provisions for elderly and infirm prisoners are billed as a way to address problems such as prison overcrowding, skyrocketing budgets and civil rights lawsuits alleging inadequate medical care. But throughout the U.S., they are used so infrequently that they aren’t having much impact.

Of the 47 states with processes to free such prisoners early or court rulings requiring them to do so, just three — Utah, Texas and Louisiana — released more than a dozen people in 2015, according to a Journal Sentinel survey.  The reasons for the low numbers, according to experts, are usually found in the statutes that created the programs, known as compassionate release, geriatric release and medical parole, among other things.

Some laws, like Wisconsin’s, exclude inmates based on the type of sentence or the crime committed. Some allow release only for people who are terminal — a definition that varies by medical provider and doesn’t apply to chronic conditions or disabilities.  Some lack an efficient process for application and approval, leaving sick prisoners to die before they can complete it.  It’s also hard to find care facilities willing to accept former prisoners.

Because many of these laws were written without input from doctors who specialize in aging and end-of-life care, they exclude the people who would benefit most, according to Brie Williams, a physician and professor of medicine at the University of California-San Francisco.  “We’ve taken health out of criminal justice policy to such a degree that the policies that have been developed do not have the geriatric and palliative care knowledge they need to make sense,” she said.

While these programs are presented as money savers, in 2015 a majority of states granted release to fewer than four applicants each.  Within states that have a compassionate release program and track the numbers, there were 3,030 people who applied, with only 216 being granted release.

April 20, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, April 19, 2018

Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim

I came across a Florida intermediate appellate court opinion today finding Sixth Amendment problems in a Florida statute, but I likely would not have blogged about were it not for the surname of the defendant: Booker!  The name Booker (Freddie J.) will be forever connected to the transformation of the federal sentencing system.  Another Booker (Reginald Lee) seems unlikely to have quite the same impact on Florida sentencing, but his case is still interesting for hard-core Apprendi/Blakely fans.  Here are excerpts from Booker v. Florida, No. 1D15-3558 (Fla. 1st Dist. April 18, 2018)(available here):

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions — thereby shifting incarceration of these offenders to county jails for a maximum of up to one year.  [But it also provided] "if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility."  [This provision], which was used to enhance Booker’s sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue....

Given the momentous role of the jury in our country’s legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker.  It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender’s sentence beyond the maximum allowable by the “facts reflected in the jury verdict alone.” Blakely, 542 U.S. at 303.  As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years — based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed....

Put simply, section 775.082(10)’s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction.  Protection of the jury trial right does not hamstring the Legislature’s ability to achieve its policy goals, however.  For example, if section 775.082(10) required a jury — rather than a judge — to make factual findings about an offender’s potential for future dangerousness, the check on personal liberty that the Sixth Amendment’s right to a jury trial provides would be retained.  A simple legislative fix might be to amend subsection (10) to say: “. . . if the court a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.”  Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

Notably, this opinion concludes by noting conflicts with other Florida appellate rulings and then certifying the issue as of "great public importance" for the Florida Supreme Court. So maybe we have not heard the last of the name Booker in Florida.

April 19, 2018 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Ohio Supreme Court unanimously rejects Sixth Amendment challenge to state's capital sentencing procedures

A couple of states have had their death penalty systems chewed up by the "post-Hurst hydra," the term I have used to describe the aftermath litigation in various courts in various states as judges apply the Supreme Court Sixth Amendment ruling in Hurst v. Florida. But yesterday in Ohio v. Mason, 2018-Ohio-1462 (Ohio April 18, 2018) (available here), the Ohio Supreme Court explained why Ohio's capital sentencing procedures are constitutionally sound. Here is how the opinion starts and some key passages:

At issue in this case is whether Ohio’s death-penalty scheme violates the right to a trial by jury as guaranteed by the Sixth Amendment to the United States Constitution. The Marion County Court of Common Pleas found that it does, but the Third District Court of Appeals reversed the trial court’s judgment. Because the Ohio scheme satisfies the Sixth Amendment, we affirm....

When an Ohio capital defendant elects to be tried by jury, the jury decides whether the offender is guilty beyond a reasonable doubt of aggravated murder and — unlike the juries in Ring and Hurst — the aggravating-circumstance specifications for which the offender was indicted. R.C. 2929.03(B).  Then the jury — again unlike in Ring and Hurst — must “unanimously find[], by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors.”  R.C. 2929.03(D)(2).  An Ohio jury recommends a death sentence only after it makes this finding. Id.  And without that recommendation by the jury, the trial court may not impose the death sentence.

Ohio law requires the critical jury findings that were not required by the laws at issue in Ring and HurstSee R.C. 2929.03(C)(2). Ohio’s death-penalty scheme, therefore, does not violate the Sixth Amendment.  Mason’s various arguments to the contrary misapprehend both what the Sixth Amendment requires and what it prohibits....

While we uphold our conclusion in Belton that weighing is not a fact-finding process subject to the Sixth Amendment, we further conclude that even if the weighing process were to involve fact-finding under the Sixth Amendment, Ohio adequately affords the right to trial by jury during the penalty phase.  Mason contends that it does not, because the process permits a jury only to recommend a death sentence.  See R.C. 2929.03(D)(2).  Here, he emphasizes the statement in Hurst that “[a] jury’s mere recommendation is not enough.” Hurst, ___ U.S. at ___, 136 S.Ct. at 619, 193 L.Ed.2d 504.  But he fails to appreciate the material difference between the process by which an Ohio jury reaches its death recommendation and the Florida process at issue in Hurst.

April 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, April 18, 2018

How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?

The big Supreme Court vagueness ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), is properly being discussed as a significant immigration ruling: the Justice were considering (and struck down as vague) how Congress defined an offense of violence in 18 U.S.C. § 16(b) in a case involving a alien subject to deportation for committing a certain kind of crime.

But, critically, the now-unconstitutional definition of a "crime of violence" in § 16(b) is referenced throughout the federal criminal code within various criminal offenses and sentence enhancements.  And, notably, definitional language identical to § 16(b) appears in 18 U.S.C. § 924(c)(3)(B), which is part of a statute that adds significant amounts of prison time for any possession or use of a gun in connection with a crime of violence.  In other words, as the title of this post suggests, there are certainly some number of persons serving federal prison time based on a definition of a  "crime of violence" deemed unconstitutionally vague in Dimaya.

But, as my post title suggests, it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.  Helpfully, Leah Litman thoroughly covers, in this lengthy new Harvard Law Review blog posting, the array of procedural hurdles that Dimaya defendants are likely to face.  Here is how her extended piece starts and ends:

The Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.”  The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences....

Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review....

Dimaya spoke of “lesson[s] so hard learned” from Johnson and the ACCA debacle that Johnson corrected.  But another lesson that was hard learned from Johnson is that Johnson, or in this case Dimaya, will just be the beginning.  Whether those decisions will ultimately benefit the individuals who are currently wrongly incarcerated will depend on what comes next, and specifically on how courts interpret the many draconian restrictions on post-conviction review.

April 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, April 17, 2018

"Will the Supreme Court Rein in Civil Forfeiture?"

The title of this post is the title of this new piece by Matt Ford at The Atlantic, and the question it poses strikes me as particularly timely in light of the notable discussion of civil sanctions by Justice Gorsuch in a concurring opinion this morning in Dimaya.  Here is part of the piece:

The state of Indiana really wants to take Tyson Timbs’s Land Rover, as punishment for dealing just a few hundred dollars’ worth of drugs. He’s now asking the U.S. Supreme Court to let him keep it.

Stories about civil forfeiture injustices are unfortunately common. What sets Timbs’s case apart is his legal argument: that the Eighth Amendment’s ban on excessive fines should shield his property from confiscation at the state level. If the Supreme Court takes up the case and agrees, the justices could impose some much-needed barriers on state and local governments’ voracious appetites for fees, fines, and forfeitures....

Undercover officers solicited from Timbs, buying just under four grams of heroin for less than $400. He was arrested and charged with dealing a controlled substance and conspiracy to commit theft. Timbs pleaded guilty and received a six-year sentence to be served outside prison walls. The state also tried to seize his Land Rover, kicking off the legal battle that ultimately brought him to the Supreme Court.

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared. Timbs, with his petition in January, is now asking the U.S. Supreme Court to overturn that ruling.... But the Excessive Fines Clause is ripe for consideration in the age of mass incarceration. Impoverished Americans often lack the resources to pay off the fines and fees that can come from even a casual brush with the criminal-justice system. In a cruel twist, the inability to pay these costs can result in jail time itself. Keeping oneself out of trouble is also no guarantee of immunity: A 2014 Washington Post investigation, for example, found that police in multiple states use “highway interdiction” to target thousands of motorists for seizures of cash and property....

Civil-asset forfeiture, though still common, has come under increasing scrutiny across the political spectrum. Attorney General Jeff Sessions’s push last year to revive the practice at the federal level drew harsh rebukes from the ACLU and congressional Republicans alike. Justice Clarence Thomas set off a signal flare of sorts last April suggesting he had doubts about the practice’s constitutionality.

The Indiana case revolves around different legal questions that the ones Thomas was asking last year, but the underlying injustices are the same. Taking up the issue would give the justices a chance to set new limits on excessive fines and forfeitures for cash-hungry counties and cities. For Timbs and thousands of other Americans, that intervention would be a welcome relief.

April 17, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Is Justice Gorsuch ready, willing, and eager to blow up the civil/criminal divide?

Justice Neil Gorsuch served as the swing vote and issued quite an interesting concurring opinion this morning in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here).  Various aspects of Judge Gorsuch's opinion may merit commentary, but the question in the title of this post was my reaction to his various comments about civil sanctions and criminal punishments.    Though many constitutional doctrines make critical and consequential distinctions between civil sanctions and criminal punishments, Justice Gorsuch seemingly does not think there is much "there there."  Here are the passages that I found especially striking in this regard:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments.  Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.  Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes — and often harsher than the punishment for felonies....

My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty.  But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions.  Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?  I can think of no good answer.

I find heartening Justice Gorsuch's obvious disaffinity for watered-down procedural rights (too) often applied to severe "civil" sanctions, and I think litigators challenging these kinds of sanctions can and should be sure to cite this concurring opinion along the way.

April 17, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Two notable opinions from SCOTUS on vagueness and habeas review

The US Supreme Court handed down two big opinions this morning that criminal justice fans will want to check out. Here are the basics with links from How Appealing:

Justice Elena Kagan announced the judgment of the Court and delivered the opinion of the Court in large measure in Sessions v. Dimaya, No. 15-1498. Justice Neil M. Gorsuch issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, Jr. joined. And Justice Thomas issued a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Justice Stephen G. Breyer delivered the opinion of the Court in Wilson v. Sellers, No. 16-6855.  Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Alito joined. 

The Dimaya opinion, which runs nearly 100 pages in total, starts this way:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The Wilson opinion is much shorter, but its start is much longer:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).  Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U.S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult.  It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons.  For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do?  We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale.  It should then presume that the unexplained decision adopted the same reasoning.  But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

April 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Sunday, April 15, 2018

"The Role of Age in Plea Bargain Decision Making"

The title of this post is the title of this intriguing paper recently posted to SSRN authored by Anton Gollwitzer.  Here is its abstract:

Research has elucidated that defendants in criminal cases behave differently depending on their age.  How age specifically affects plea bargain behavior, however, has only been sparsely investigated.  In four studies, we observed that age influences whether lay individuals’ plea bargain decision making is concordant (i.e., accept plea bargains if guilty and opt for trial if innocent) or discordant (i.e., accept a plea bargain if innocent and opt for a trial if guilty) in ‘mock’ criminal scenarios.

In line with emerging adults’ (18-28 years old) increased just-world beliefs and illusions of transparency, Study 1 provided indirect evidence that emerging adults’ plea bargain decision making is more concordant than mature adults (29-40).  Study 2, however, found that this effect is dependent on the defendant’s likelihood of conviction.  Studies 3 and 4 emulated Studies 1 and 2, however, they examined how parents of differently aged children advise their children regarding plea bargains decision making.  Parents of younger children (8-11 years old) advised their child similarly to how they themselves would act.  Parents of adolescents (12-18), on the other hand, adopted an entirely concordant approach, advising their adolescent child to behave according to their child’s culpability.  Overall, we find that individuals’ approach to plea bargain decision making depends on their age group (or the age group of their children), culpability, and probability of conviction.

April 15, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 13, 2018

US District Judge explains why he believes "the scales of justice tip in favor of rejecting plea bargains"

A helpful reader made sure I saw a remarkable new opinion from US District Judge Joseph Goodwin of the US District Court for the Southern District of West Virginia in US v. Stevenson, No. 2:17-cr-00047 (S.D. W. Va. April 12, 2018) (available here). The starts of the 19-page opinion should readily reveal why criminal justice fans why this opinion is today's must-read:

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case.  I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.

Wowsa! #morejurytrials?

April 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, April 11, 2018

"Privatizing Criminal Procedure"

The title of this post is the title of this newly posted article appearing on SSRN authored by J.D. King. Here is the abstract:

As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants.  Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury.  As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights.  The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure.  This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights.  This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

April 11, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (2)

Tuesday, April 10, 2018

Federal district judge finds Michigan's elimination of good-time credit in Miller fix unconstitutional

As reported in this local article, a "federal judge has ruled a Michigan law violates the constitution by not allowing juvenile lifers to earn good-time and disciplinary credits while in prison." Here is more: 

Following [the Supreme Court's ruling in Miller], the state put into law the ability to sentence child killers to a number of years with a chance of parole. Because that law does not allow those offenders to earn good-time credits, Goldsmith ruled it is unconstitutional and ordered the state calculate good-time and disciplinary credits for those who have already been re-sentenced under that law within 14 days.

“Today’s ruling is a tremendous victory for fairness in our criminal justice system,” Dan Korobkin, ACLU of Michigan Deputy Legal Director and one of the plaintiffs’ attorneys said in a statement. “Hundreds of youth who were serving unconstitutional life sentences will now benefit from good-time credits they earned in prison for good behavior, credits that were taken away from them by mean-spirited retroactive legislation in 2014.”

There are more than 360 people in the system who were children at the time of their crimes, including four from St. Clair County: Jimmy Porter, Raymond Carp, Michael Hills and Tia Skinner. “Restoring these credits to individuals who earned them will likely save the state millions of dollars, and will give deserving individuals a chance to reunite with their families when they no longer pose a threat to society,” Korobkin said.

The full ruling in Hill v. Snyder, No. 10-cv-14568 (April 9, 2018), is available at this link. Here is how it begins:

The United States Supreme Court has ruled that juveniles convicted of first-degree murder cannot be subject to mandatory life sentences without parole.  Because of their lesser culpability and greater capacity to change, they must be sentenced under a process that gives them an individualized opportunity to present mitigating circumstances to avert such a harsh sentence.  In response, the Michigan legislature enacted legislation that purported to comply with the Court’s ruling, which included the possibility of being resentenced to prison for a term of years.  However, the legislature provided that in calculating any such sentence, the youth offenders were not to receive any credit -- known as good time or disciplinary credit -- even though such credits were earned while the youth offenders served their illegally imposed sentences.  In that respect, the legislative response ran afoul of our Constitution’s ban on ex post facto laws -- the constitutional guarantee that laws may not retroactively criminalize conduct or enhance the punishment for criminal acts already perpetrated.  For this reason, the Court must declare that provision of the statute unconstitutional and order that the youth offenders receive the credit that they have previously earned.

April 10, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)