Monday, August 03, 2015

Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP

A Fourth Circuit panel on Friday issued a very intricate and thoughtful set of opinions in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here). The start of the majority opinion provides this effective overview of the issues in Surratt:

In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment.  We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.

Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion.  Surratt’s request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005).  Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received.  Surratt maintained that this difference entitled him to be resentenced.  But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions.  See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6.

In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief.  As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) -- also called the “savings clause” -- applies.  The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.

Surratt now appeals from the judgment of the district court.  We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence.  However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.

The end of the dissenting opinion in Surratt provides this alternative perspective on the case and its disposition by the majority:

I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ.  I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution.  Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison -- against the will of the government and the district court.  Our abdication of this responsibility begs the question: quis custodiet ipsos custodies?  Who will guard the guards themselves?

It is within our power to do more than simply leave Surratt to the mercy of the executive branch.  To hope for the right outcome in another’s hands perhaps is noble.  But only when we actually do the right thing can we be just.  I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison.  I must dissent.

August 3, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, August 01, 2015

Latest reform news means still more waiting for those eager for federal sentencing reform

This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:

Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.

The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....

Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.

But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....

The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.

And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.

Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.

As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law.  (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.)  I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."

August 1, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, July 31, 2015

Executive facing "unprecedented" LWOP sentence for food-poisoned peanut butter

Download (8)I just came across this AP story from last week reporting on a notable sentence being urged by federal guidelines in a notable white-collar case.  Here are the details:

Federal court officers have recommended a sentence of life in prison for a peanut company executive convicted of selling salmonella-tainted food, a move that attorneys on both sides called “unprecedented” for a food-poisoning case. The potential life sentence for former Peanut Corporation of America owner Stewart Parnell was disclosed by prosecutors in a court filing Wednesday. Parnell, 61, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia....

Stewart Parnell ran the now-defunct company from his Bedford County home, just outside Lynchburg city limits.  Parnell's defense attorneys confirmed the recommendation Thursday to The Associated Press, calling the possible punishment “unprecedented.”  Bill Marler, a lawyer for victims sickened by peanut butter from Parnell's southwest Georgia plant, used the same word.

In fact, Marler and other experts say the trial of Parnell and two co-defendants last year was the first federal food-poisoning case to be tried by an American court.  A jury convicted Parnell of 71 counts including conspiracy, obstruction of justice, wire fraud and other crimes related to a salmonella outbreak in 2008 and 2009.  The Centers for Disease Control linked the outbreak to nine deaths and 714 illnesses.  It prompted one of the largest food recalls in U.S. history.

Justin Lugar, one of Parnell's defense attorneys, confirmed Thursday that the recommendation before Judge W. Louis Sands is for life in prison, with no lesser range. Parnell's lawyers are trying to persuade the judge to disregard numbers used as aggravating factors to boost the suggested sentence to its maximum: an estimate that Parnell's customers suffered $144 million in losses as well as health officials’ tally that 714 people got sick....

“That recommendation is truly absurd,” said Ken Hodges, an attorney on Parnell's defense team. “We hope the judge will see that Stewart Parnell never meant to hurt anyone. He ate the peanut butter himself. He fed it to his children and to his grandchildren.”...

“Life in prison, especially in a food case, it's frankly unprecedented,” said Marler, who has represented victims of food-borne illnesses for two decades. “But the case itself, on a factual basis, is unprecedented.” Marler said he suspects the judge and prosecutors will think carefully before deciding to pursue a life sentence for Parnell. Still, he said, even the possibility of such a stiff sentence sends a message to food companies....

Even if objections raised by Parnell's attorneys to the sentencing recommendation are denied, it's still possible the judge could impose a lighter sentence. Federal judges are required to consider recommendations based on complex sentencing guidelines, but they are not bound by them.

Parnell and his co-defendants were never charged with sickening or killing anybody. Instead prosecutors used the seven-week trial to lay out a paper trail of emails, lab results and billing records to show Parnell's company defrauded customers by using falsified test results to cover up lab screenings that showed batches of peanut butter contained salmonella. The tainted goods were shipped to Kellogg's and other food processors for use in products from snack crackers to pet food.

Prosecutors wrote that court officers “correctly calculated” Parnell's recommended sentence, but stopped short of saying whether they plan to ask the judge to impose a life sentence. A spokeswoman for the Justice Department in Washington, Nicole Navas, declined to comment.

Prosecutors’ legal briefs also noted stiff sentences were recommended for Parnell's two co-defendants. Punishment of 17 to 21 years in prison was recommended for Parnell's brother, food broker Michael Parnell, who was convicted on fewer counts. The recommendation for Mary Wilkerson, the Georgia plant's quality control manager, was eight to 10 years. She was convicted of obstruction of justice.

July 31, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (4)

Thursday, July 30, 2015

What accounts for decline in federal white-collar prosecutions (and should we care)?

The question in the title of this post is prompted by this new data report from Syracuse University's Transactional Records Access Clearinghouse (TRAC), which is titled "Federal White Collar Crime Prosecutions At 20-Year Low." Here are some details from the start of the report:

Federal prosecution of individuals identified by the government as white collar criminals is at its lowest level in the last twenty years, according to the latest data from the Justice Department.

The available records show an overall decline that began during the Clinton Administration, with a steady downward trend — except for a three-year jump early in the Obama years — continuing into the current fiscal year.

During the first nine months of FY 2015, the government brought 5,173 white collar crime prosecutions. If the monthly number of these kinds of cases continues at the same pace until the end of the current fiscal year on September 30, the total will be only 6,897 such matters — down by more than one third (36.8%) from levels seen two decades ago — despite the rise in population and economic activity in the nation during this period.

The projected FY 2015 total is 12.3 percent less than the previous year, and 29.1 percent down from five years ago. These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University's Transactional Records Access Clearinghouse (TRAC).

The decline in federal white collar crime prosecutions does not necessarily indicate there has been a decline in white collar crime. Rather, it may reflect shifting enforcement policies by each of the administrations and the various agencies, the changing availabilities of essential staff and congressionally mandated alterations in the laws.

White collar crimes — as defined by the EOUSA — involve a wide range of activities including the violation of health care, tax, securities, bankruptcy, antitrust, federal procurement and other laws. Because such enforcement by state and local agencies for these crimes sometimes is erratic or nonexistent, the declining role of the federal government could be of great significance.

July 30, 2015 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Recent capital developments prompts query: "Is the death penalty dead in Washington?"

The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state.  Here are the details:

Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.

"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.

Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.

"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."

"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."

Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.

July 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, July 29, 2015

Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory

As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):

This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial.  We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.

To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory.  We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.

Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness.  Booker, 543 US at 264.  To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.

Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:

I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it.  The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution.  Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines.  Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.

July 29, 2015 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2)

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (17)

Tuesday, July 28, 2015

"Can a Public Defender Really Handle 700 Cases a Year?"

The question in the title of this post is the headline of this Mother Jones piece, which carries this subheadline: "A new ACLU lawsuit takes on a California county where 60 public defenders work 42,000 cases every year." Here is how the piece starts:

After being charged with burglary in 2013, Peter Yepez waited in the Fresno County, California, jail for a month before his assigned public defender came to talk to him.  This delay was a sign of what was to come: Between arraignment and sentencing Yepez spent more than a year being shuffled between nine different Fresno County public defenders, who he says told him they did not have time to work his case.  By then he'd missed his daughter's graduation and his young son's memorial service, and had fallen into depression.

Though he was originally accused of a domestic burglary, during those many months prosecutors added additional charges to his case, alleging that a victim had been present during burglary even though a police report filed at the time of the crime had claimed no one was there.  The new allegations would bump his original charge to a violent felony. Still, Yepez's public defender advised to him to accept all the charges and the punishment that would come — and so he did.  Now Yepez's record reflects a felony conviction.

Today Yepez is a plaintiff in a lawsuit filed recently by the American Civil Liberties Union. The lawsuit, intended to expose the deficiencies in Fresno County's public defense system was filed against Fresno (a county in which close to a quarter of the population lives below the federal poverty line), the state of California, and its governor, Jerry Brown, for  systematic issues that the  ACLU claims led to thousands of poor defendants to be denied their constitutional right to adequate representation.  All of this, the ACLU says, has perpetuated greater racial inequalities in the criminal-justice system.

According to the ACLU's complaint:

  • With an annual caseload of 42,000 and fewer than 100 people on staff, the Fresno County Public Defender's Office is unable to keep up.

  • The American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals recommends caseload caps at 150 felony cases or 400 misdemeanor cases per full time attorney.  But the 60 public defenders on Fresno's staff carry caseloads of more than four times that amount.

  • The county's public defenders office has high turnover rates — 50 attorneys quit between 2010 and 2014 — and new hires are often inexperienced.

  • Minorities make up about 70 percent of those arrested in Fresno.  The ACLU claims that immigrants are often instructed to plead guilty without being told how it might affect their immigration status.

July 28, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, July 27, 2015

"On the Argument That Execution Protocol Reform is Biomedical Research"

The title of this is the title of this notable and timely new piece by Paul Litton now available via SSRN. Here is the abstract:

Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure.  Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.”  Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated.  Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research permissible.

Part I of this essay grants Shah’s conclusion that death penalty states are engaged in human subjects research.  However, it argues that if protocol reform amounts to research, it is unethical for lacking social value, even if capital punishment is justified. The purpose of this “research” is to make executions palatable to the public and, thereby, maintain support for the death penalty.  (Its purpose is not to find a painless means of killing; we already have that knowledge).  However, the state disrespects its citizens by attempting to influence public opinion by a means that has nothing to do with reasons to support its policies.

Part II provides reasons to doubt that the law and ethics of research should govern protocol reform.  Contrary to Shah’s hopes, the application of the law and ethics of research to executions will not help ensure less suffering for the condemned.  Finally, Part III argues that describing lethal injection reform as human subjects research fails to add moral or legal reasons to condemn the way in which states have conducted recent executions.  The basic problem is not that protocols represent “poorly designed experimentation,” but rather that they are poorly designed.

July 27, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, July 26, 2015

Could brain implants "make the death penalty obsolete"?

The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete."  For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way).  Here are excerpts:

The death penalty is one of America’s most contentious issues.  Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them).  Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....

Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.

For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors.  Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts.  This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?

Recently, the commercially available Thync device made headlines for being able to alter our moods.  Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy.  So the technology to change behavior and alter the brain isn’t science fiction.  The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.

Some people may complain that implants are too invasive and extreme.  But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs.  In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them.  After all, some people — including myself — believe much violent crime is a version of mental disease.

With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy.  Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society.... 

Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment.  We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.

Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably.  In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time.  Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.

Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught.  Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything.  Simply put, physical crimes will be much harder to commit.  And if people knew they were going to be caught, crime would drop noticeably.  In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).

Inevitably, the future of crime will change because of technology.  Therefore, we should also consider changing our views on the death penalty.  The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.

Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail.  The US prison system costs four times the entire public education system in America.  To me, this financial fact is one of the greatest ongoing tragedies of American economics and society.  We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.

July 26, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14)

Saturday, July 25, 2015

"Federalism and Retroactivity in State Post-Conviction Proceedings"

The title of this post is the title of this notable article authored by Stephen R. McAllister appearing in the latest issue of The Green Bag. Here are excerpts from the introduction:

This article builds on an amicus brief I drafted for Kansas in Danforth v. Minnesota several years ago, and considers whether the federal retroactivity doctrines are binding on the states when it comes to the states’ own post-conviction proceedings.  The article does not take issue with the well-settled propositions that Supreme Court decisions issued before state criminal cases become “final” are binding on the states and their courts, and that the federal courts will apply Teague retroactivity principles in federal habeas proceedings.

My conclusion is that there is no federal constitutional bar to the states developing their own retroactivity doctrines for state postconviction proceedings, whether those doctrines are broader or stricter than a federal habeas counterpart such as Teague.  So long as state legislatures and state courts make that decision as a matter of state law, there is no federal constitutional principle at stake, and no federal interests are harmed.  That said, Montgomery v. Louisiana does not seem a proper case in which to decide the issue.

July 25, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers

Download (7)One aspect of the modern death penalty that always irks me is the all-too-common reality that some of the very worst-of-the-worst murderers often get the help of some of the very best-of-the-best defense lawyers (and almost always at taxpayer expense).  As I write this post, there are literally tens of thousands of federal drug prisoners desparate to get the help of any lawyer to help them prepare a decent clemency petition.  But, as this local article highlights, white supremacist mass murderer Dylann Roof now is going to be represented in federal court by one of the very best defense lawyer in nation:  

Legendary death penalty lawyer David Bruck, who has more than 35 years of experience in South Carolina and around the nation representing people accused of heinous killings, has been appointed lead defense lawyer for alleged white supremacist killer Dylann Roof, according to federal court records....

Roof, 21, of the Columbia area, is charged with killing nine African-Americans in June during a prayer meeting at a historic downtown Charleston church, “Mother” Emanuel AME. Evidence against him includes a purported confession, an alleged online manifesto in which he announced his intention to start a race war by going to Charleston and Internet photos on his alleged website of him and his gun.

A federal grand jury in Columbia indicted Roof on Wednesday on 12 counts of committing a hate crime against black victims, 12 counts of obstructing the exercise of religion and nine counts of the use of a firearm to commit murder....

Bruck, 66, has the kind of experience Roof needs, lawyers familiar with death penalty cases said Thursday. “He’s the total package, versed in the law and quick on his feet at trial. He never screams or yells — he’s a methodical, intentional kind of guy,” recalled Columbia attorney Dick Harpootlian, who as 5th Circuit prosecutor won a death penalty case over Bruck in a 1990s trial, only to lose to Bruck in oral arguments before the U.S. Supreme Court in the same case.

Columbia defense attorney Jack Swerling, who has tried a dozen death penalty cases, said he has consulted Bruck on most of them.  “He’s my go-to guy,” said Swerling, known as one of South Carolina’s best criminal defense lawyers.  “He’s formidable, brilliant, and he is a passionate advocate against the death penalty.  He truly believes it’s not appropriate in any case.  That is his heart and soul.”

The Canadian-born Bruck, who graduated from the University of South Carolina law school and got his start defending S.C. death penalty cases in the early 1980s, helped win a life sentence in the nationally publicized 1995 case of child killer Susan Smith, now in state prison for drowning her children in a Union County lake.  He recently helped defend Dzhokhar Tsarnaev, the Boston Marathon bomber who was sentenced to death in May....

But his record shows that few of his clients are acquitted by juries.  Instead, Bruck concentrates on either getting life sentences during the punishment phase of a capital case, or getting a death penalty overturned on appeal.  Over the years, Bruck has been involved in hundreds of death penalty cases across the country, either as a lawyer or adviser.

Since 2004, Bruck has been director of Washington & Lee University’s death penalty defense clinic, the Virginia Capital Case Clearinghouse.  Before that, Bruck practiced criminal law in South Carolina for 28 years, specializing in death penalty cases....

Most of the crimes Roof has been charged with in both state and federal arenas are death penalty eligible. However, a formal decision to seek the death penalty has not been announced by either state or federal prosecutors.  Death penalty cases are so complex that federal judges appoint defense lawyers knowledgeable in capital punishment law and trials well before a case has been formally declared a death penalty case.

“Judges don’t want to wait on the Justice Department,” said Columbia attorney Johnny Gasser who has prosecuted the only three federal death penalty cases in South Carolina’s modern era. “Judges want to go ahead ... to ensure that the accused is appointed the best legal representation possible.”

Of course, as critics of modern death penalty are right to highlight, not every capital defendant gets great (or even competent) defense representation. In fact, the sad reality in most state capital prosecutions is that poor representation has historically been much more common than top-flight lawyering. But, as we have now seen due to the mass murders committed by Dzhokhar Tsarnaev and Dylann Roof, when federal prosecutors get involved in a capital case, it is far more likely for some of the best lawyers in the country to be involved on the defense side. (This reality is one reason I quite seriously contend that capital punishment should be the (almost) exclusive province of federal prosecutors, and also a reason I half-jokingly suggest murderers should be sure to kill in a way that garners federal attention and triggers federal jurisdiction.)

July 25, 2015 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Friday, July 24, 2015

Many notable passages in recent sentencing reform speech by DAG Yates

Images (5)Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts.  Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice.  The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:

[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform.  I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system.  And it’s because of that I believe that we can and we must do better....

I’ve been a prosecutor for 26 years.  I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time.  But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....

While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety.  At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity.  And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t.  As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget.  This comes with great costs.  Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.

From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget.  Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists.  These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....

Some states have been great innovators in criminal justice reform.  I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response.  And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well.  In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.

Despite all of this, there are some who want to keep things as they are.  One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals.  Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago.  As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent.  Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy.  So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....

I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less.  Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent.  It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.

As prosecutors, it is our obligation to speak out against injustices and to correct them when we can.  That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.

Related recent prior posts:

July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Looking ahead to SCOTUS 2015 Term's sentencing cases on its criminal docket

Over at SCOTUSblog, Rory Little has this terrific new post highlighting that 11 of the 35 cases already on the Supreme Court's docket for its next Term involve criminal law cases. Here is an except from the start of this post, along with the description of a few of the coming SCOTUS cases that have at least one sentencing fan especially revved up:

Eleven of the cases in which review has already been granted for the next Term are criminal-law or related (under my generous standards).  The Eighth Amendment portends to be a particular focus: four cases involve the death penalty, and a fifth involves juvenile life without parole.  The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment.  I can’t recall a prior Term where that was true at the end of the prior Term.

 Finally, five of the eleven cases in which review has been granted are from state supreme courts, suggesting that at least some of the Justices realize that waiting for a criminal case to come to them via a later federal habeas petition can obscure the legal question presented, due to the highly deferential standards now embodied in the federal habeas statute, 28 U.S.C. § 2254 (the 1996 AEDPA amendments).

Here are brief descriptions of the criminal-law questions presented in the cases granted so far:

1. Hurst v. Florida:  Whether Florida’s death sentencing scheme, which permits a judge to find aggravating factors to impose death (and which does not require a jury to determine mental disability or to be unanimous in their findings or sentence) violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona.  (Florida Supreme Court)...

3. Montgomery v. Louisiana:  Whether Miller v. Alabama, which prohibits mandatory life without parole for juveniles convicted of homicide, applies retroactively. (Louisiana Supreme Court)

4 & 5.  Kansas v. Carr (along with another case with the same caption but a different case number) and Kansas v. Gleason:  (1) Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court ruled; and (2) whether the trial court’s decision not to sever co-defendants for sentencing in a capital case violates an Eighth Amendment right to “individualized sentencing.”  (Kansas Supreme Court)....

8. Lockhart v. United States:  Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)

July 24, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, July 22, 2015

Do gubernatorial moratoria on executions impact securing of death sentences?

The question in the title of this post is raised by the start of the capital phase of the death penalty trial of Aurora theater shooter James Holmes and is discussed in this interesting Los Angeles Times article.  The article is headlined "Death penalty is sought against James Holmes, but governor stands in the way," and here are excerpts:

When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of "The Dark Knight Rises." For the families of the dead and wounded. Then he cautioned that last week's verdict "is just a stepping stone" on the path to justice.

The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office....

Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.

Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries' willingness to carry out the ultimate punishment. "What's the role of these reprieves? I don't think there's an independent effect, but it's part of an overall drift away from the death penalty," said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.

Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber....

In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend's relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson's family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.

The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an "indefinite reprieve" to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese's pizza restaurant in 1993 and was sentenced to death three years later.

The reprieve was granted as Dunlap's execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.

The political pushback was swift. Moments after the governor announced Dunlap's reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap's execution "a no-brainer," according to the Denver Post, and said the governor refused "to make any hard decision today.... This is inaction. This is shrugging. This is not justice."

Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes' offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.

Still, a sitting governor's ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.

"I think it's impactful when the governor of your state says your state should never be involved in killing anyone," said Craig Silverman, a former Denver chief deputy district attorney. "However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not."

July 22, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."

Download (6)I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:

The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.

Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”

Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions.  Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”

Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.

For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”

UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.

July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tough-on-crime crowd making the case for modern mass incarceration

The folks who blog at Crime & Consequences are among the most effective and eloquent advocates for the modern size, scope and operation of the American criminal justice system, and they have been especially active of late lamenting the ever-growing number of politicians calling the current system broken and urging reduced reliance on incarceration.   Here are links to just some of the major posts in this vein from C&C in the last few weeks (some of which link to others criticizing sentencing reform efforts):

July 22, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (12)

Tuesday, July 21, 2015

Eighth Circuit rejects "safe sex" special condition of supervised release

Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention.  These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why: 

At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.”  In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...

The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.”  During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...

[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

The special condition also is not reasonably related to the statutory factors set forth in § 3583(d).  As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense.  The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm.  Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment.  For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.

We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.

July 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"

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

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.

In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud.  This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders.  In concluding this initial examination, the Article discusses three observed trends.  First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s.  Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s.  Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.

In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion.  In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly.  In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association. 

July 21, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Intriguing federal civil rights case assailing New York sex offender family restrictions

A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):

With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.     

A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state.  Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.

Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff.  The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf.  Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.

It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14.  The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.

While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years.  They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012.  Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.

A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.

Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.

After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."

Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...

Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.

Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.

Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."

"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child."  Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."

David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members.  Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....

Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either....  Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."

"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.

July 21, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Monday, July 20, 2015

Local coverage of compelling realities to be at heart of Aurora shooter penalty phase

Not suprisingly, the Denver Post now has especially fullsome coverage of the key issues to surround the upcoming penalty phase following the capital conviction of James Holmes last week.  Here are two pieces (and their extended headlined) that caught my eye:

July 20, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"Trustworthiness of Inmate’s Face May Sway Sentencing"

The title of this post is the headline of this helpful summary of an interesting new study from the journal Psychological Science.  Here are highlights of the summary:

How trustworthy an inmate’s face appears to others seems to play a very large role in the severity of the sentence he receives, according to new research published in the journal Psychological Science.

The study shows that inmates whose faces were rated as low in trustworthiness by independent observers were more likely to have received the death sentence than inmates whose faces were seen as more trustworthy, even when the inmates were later cleared of the crime.

The findings reveal just how powerful appearances can be in guiding judgment and decision making, influencing outcomes in situations that are literally a matter of life and death.

“The American justice system is built on the idea that it is blind to all but the objective facts, as exemplified by the great lengths we go to make sure that jurors enter the courts unbiased and are protected from outside influences during their service. Of course, this ideal does not always match reality,” said Drs. John Paul Wilson and Nicholas Rule, psychological scientists at the University of Toronto and co-authors on the study. “Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone.”

Previous studies have confirmed a bias against faces perceived as untrustworthy, but much of the these have relied on study participants contemplating criminal verdicts hypothetically. For the new study, the researchers wanted to know whether this bias extended beyond the lab to a very real, and consequential, decision: whether to sentence someone to life in prison or to death.

The researchers used the photos of 371 male inmates on death row in Florida; 226 of the inmates were white, 145 were black, and all were convicted of first-degree murder. They converted the photos to gray to minimize any variations in the images and asked an online panel of 208 American adults to look at the photos and rate them on trustworthiness using a scale from one (not at all trustworthy) to eight (very trustworthy). The participants also evaluated photos of age- and race-matched inmates who had also been convicted of first-degree murder but received a sentence of life in prison instead of death. The raters did not know what sentence an inmate had received, or even that the photos were of inmates at all.

The findings showed that inmates who had received the death sentence tended to be perceived as less trustworthy than those sentenced to life in prison; in fact, the less trustworthy a face was deemed, the more likely it was that the inmate received the death sentence. This connection remained even after the researchers took various other factors into account, such as facial maturity, attractiveness, and the width-to-height ratio of the face.

Importantly, the inmates in the two groups had committed crimes that were technically equally severe, and neither sentence would have allowed for the inmates to return to society — as such, the motivation to protect society could not explain the harsher punishments consistently given to the less trustworthy-looking inmates. “Any effect of facial trustworthiness, then, seems like it would have to come from a premium in wanting to punish people who simply look less trustworthy,” the researchers said.

Even further, a follow-up study showed that the connection between perceived trustworthiness and sentencing emerged even when participants rated photos of inmates who had been sentenced but who were actually innocent and later exonerated. “This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth,” said Wilson and Rule.

The published study is available here, and its actual title is "Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes."

July 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Friday, July 17, 2015

Previewing the penalty phase after James Holmes found guilty on all charges

This article, headlined "After the guilty verdict: What happens next in theater shooting case to decide James Holmes' fate?," provides a preview of what will define the penalty phase for the Colorado mass shooter after his conviction on multiple murder counts on Thursday. Here are the basics:

Now that the gunman has been found guilty on all 165 counts, the court is preparing to move to the part of the trial where a sentence will be determined. Prosecutors are seeking the death penalty for James Holmes, who on Thursday was found guilty of murdering 12 people, injuring 70 others and assembling incendiary booby-traps inside his Aurora apartment....

In the first portion of the penalty process, the prosecution must prove to the jury beyond a reasonable doubt that the crimes included at least one statutory aggravating factor. There are several such factors in Colorado, but these are the ones that might apply to this case:

  • The defendant committed the offense in an especially heinous, cruel, or depraved manner
  • In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense
  • The defendant intentionally killed a child who has not yet attained twelve
  • The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode

Based on the defense team's statements in court Thursday evening, that phase of the case is only expected to last a few hours but the jury does have to deliberate and agree to move on.

If they do move to the next phase, jurors will be asked to hear mitigating factors presented by the defense. At this point, they're likely to hear from family and friends of the convicted shooter who could testify about his life. They are also likely to present information about his mental illness. Mitigating factors under Colorado law that could be included in this case are:

  • The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution
  • The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
  • The emotional state of the defendant at the time the crime was committed
  • The absence of any significant prior conviction
  • The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney
  • The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct
  • The defendant is not a continuing threat to society
  • Any other evidence which in the court's opinion bears on the question of mitigation.

After hearing those presentations, the jury needs to deliberate again to decide if the mitigating factors outweigh the aggravating factors. If they do, the case will move to the third phase.

In that third and final phase, the jury will be asked to judge the defendant's character against his crime. They need to decide if the prosecution has proven beyond a reasonable doubt if the death penalty is the appropriate penalty.

If at any point in the process the jury decides not to move to the next phase, the gunman would be sentenced to life imprisonment without the possibility of parole.  Also, the vote must be unanimous to deliver a death sentence.

July 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, July 16, 2015

Lots of justified attention for Judge Alex Kozinski's new article, "Criminal Law 2.0"

Ninth Circuit Judge Alex Kozinski can gather the attention of lawyers and law professors for lots of reasons.  He is doing so these days because of his authorship of this provocative preface to the Georgetown Law Journal's 44th Annual Review of Criminal Procedure.

The piece is a must-read for everyone interested in criminal justice and criminal justice reform, and bloggers at Above the Law and at The Volokh Conspiracy are doing us the favor of highlighting especially interesting passages. Here are links to the bloggy Kozinski coverage so far:

12 reasons to worry about our criminal justice system, from a prominent conservative federal judge

Why Judges and Prosecutors Don’t Care If They’re Right

Kozinski On Juries, Sentencing, and Justice

Judge Kozinski on juries

July 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Highlighting significant disparities in DUI homicide sentences in Florida

The Miami Herald has this interesting new article highlighting big differences in sentences handed out in Florida when a drunk driver kills.  The piece is headlined "A Florida DUI death conviction means prison — but for how long varies widely," and here are excerpts:

At 20, Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with angry relatives of the dead, a Broward judge slammed her with a 24-year prison term.

Days later, a longtime alcoholic named Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a Liberty City restaurant while driving drunk, killing two church elders. Relatives offered earnest forgiveness. Lawrence got 10 years.

Downstairs on the very same day, in a courtroom with zero television news cameras, Edna Jean-Pierre, 27, took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case. A Miami-Dade judge, Dennis Murphy, sentenced her to four years in prison....

There is a four-year mandatory minimum for a DUI manslaughter conviction in Florida, but as these recent cases show, prison terms vary widely from cases to case and, a Miami Herald data analysis shows, from county to county.

In over 400 fatality cases resolved in Florida since 2012, the statewide average sentence for DUI manslaughter is just under 10 years behind bars, according to a Herald analysis of prison records. Miami-Dade by far had the most cases in that time span, 66, and among the lightest average sentences with convicts serving an average of just over 6 years in prison. In Broward’s 27 cases, defendants in that time span are serving just under 10 years. “Broward has both a reputation and a reality of being harsher than Miami-Dade,” said Miami defense attorney David Weinstein....

Legal experts say the the reasons for the disparity in sentences are complex. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and the desires of a victim’s loved ones. “Victims drive to a good degree what the sentence outcome will be,” said Miami attorney Rick Freedman. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”...

The four-year minimum mandatory term is a recent addition to the law, added in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, a case in which the driver got only three years of probation.

Drivers convicted in fatal hit-and-run crashes — whether alcohol is detected or not — now also face a minimum of four years in prison. Lawmakers in 2014 passed the law, named after Miami cyclist Aaron Cohen, whose death spurred outrage after a Key Biscayne man got only two years behind bars for killing Cohen in the hit-and-run wreck.

Drunk drivers who kill rarely escape at least some prison time, and prosecutors can waive the minimum four years mandatory — like in a highly criticized 2009 case in Miami Beach involving a pro football player. Donte’ Stallworth, who played for five NFL teams, got 30 days in jail and a lengthy probation for killing a pedestrian crossing the MacArthur Causeway. For prosecutors, there was no guarantee of victory at trial — the victim, Mario Reyes, was not in a crosswalk that dark morning. The decision to support the lighter sentence hinged on Reyes’ relatives, who pushed for the deal and also received an undisclosed settlement from Stallworth.

Forgiveness from families can make a difference. In Lawrence’s case, he met with families of the two church elders killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. Miami-Dade Circuit Judge Diane Ward gave him 10 years, by no means a slap on the wrist, but much less than the 34 years he faced had he been convicted at trial.

“You’re dealing with people who are not criminals, not people who went to harm others,” said Assistant State Attorney David I. Gilbert, who oversees traffic homicide cases. “They are average citizens who have made a very serious mistake. Different judges deal with different cases in different ways.” The emotional reaction of relatives also can clash, with some urging leniency and others calling for heavy punishment, Gilbert said.

July 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (7)

"From a First Arrest to a Life Sentence"

Sharanda-1mThe title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:

Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense.  She was a first-time, nonviolent offender.

“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby.  I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....

Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.

Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer.  Jones was hit with a barrage of “enhancements.”

Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.”  Enhancement.

When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.”  Enhancement.

Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring.  Enhancement.

By the end, Jones’s sentencing had so many that the federal judge had only one punishment option.  With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.

Jones almost certainly would not receive such a sentence today.  Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine.  And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment.  In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.

But a lingering legacy of the crack epidemic are inmates such as Jones.  About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union.  Most are poor, and four in five are African American or Hispanic.

In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison.  They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime.  They must have demonstrated good conduct in prison.  And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Jones applied. It has been a halting process, however.  Only 89 prisoners of the more than 35,000 who have filed applications have been freed.  They include 46 inmates who were granted clemency on Monday by Obama.  Jones wasn’t among them....

On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting.  But they found her guilty of one count of conspiracy to distribute crack cocaine.

Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine.  He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years.  All have since been released.

The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack.  Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine.  He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother.  (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)

The judge’s calculation made Jones accountable for 23.92 kilograms of crack.  That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements.  The final number — 46 — dictated the sentence, leaving the judge no discretion.

“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999.  “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”

The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties.  And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.

One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.

The jurors who found Jones guilty were never told about the life sentence, which came months after the trial.  Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company.  “That is too severe.  There’s people killing people and getting less time than that.  She wasn’t an angel.  But enough is enough already.”

July 16, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 15, 2015

GOP House members request AG Lynch to provide accounting of Prez Obama's commutations

As reported via this official press release, it would appear that some GOP House members, seemingly concerned with how President Obama is now using his clemency powers, have decided to question Attorney General Loretta Lynch about what her boss is doing.  Here is what the press release explains (along with the full-text of letter, which is also available at this link): 

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and 18 Republican Members of the House Judiciary Committee today pressed for answers about the Obama Administration’s unprecedented clemency program for certain federal drug offenders in a letter to Attorney General Loretta Lynch.

Although the Justice Department’s own manual states that commutation of sentence is “an extraordinary remedy that is rarely granted,” the Obama Administration last year announced a clemency program for certain federal drug offenders and asked the defense bar to recruit candidates for executive clemency.  To date, 89 federal offenders have received sentence commutations, with the vast majority of those commutations going to federal drug offenders.

Here some key language from the letter, which I find curious and questionable in a variety of respects (especially the language I have emphasized below):

As Members of the Judiciary Committee, which oversees the Department of Justice, including the functions performed by the Office of the Pardon Attorney, we are deeply concerned that the President continues to use his pardon power to benefit specific classes of offenders, or for political purposes. No one disputes that the President possesses the constitutional authority to grant pardons and commutations. However, as the Department’s own U.S. Attorney’s Manual states, commutation of sentence is “an extraordinary remedy that is rarely granted.”

Additionally, the fact that the Department’s clemency initiative is focused solely on federal drug offenders continues this Administration’s plainly unconstitutional practice of picking and choosing which laws to enforce and which to change. This is not, as the Founders intended, an exercise of the power to provide for “exceptions in favour of unfortunate guilt,” but instead the use of the pardon power to benefit an entire class of offenders who were duly convicted in a court of law – not to mention a blatant usurpation of the lawmaking authority of the Legislative branch.

The parts of the letter I have stressed strike me as curious and suspect because they seem to have little legal or factual foundation (though they track quite closely to comments made a day earlier by Bill Otis at Crime & Consequences):

1.  Legally, there is no clear constitutional or other legal restriction on the President deciding, if he so chooses, to use his "pardon power to benefit specific classes of offenders, or for political purposes."  Indeed, the constitutional history of the pardon power, buttressed by comments in the Federalist Papers (see No. 74 and this Heritage memorandum), suggests that broad clemency power was preserved by the Framers in part to enable the Prez to be able to use this power to benefit specific classes of offenders, or for political purposes, when desired.  To this end, Pardon historian P.S. Ruckman rightly calls out this portion of the letter for "a very special kind of stupidity and ignorance."

2.  Factually, the current Obama clemency/commutation initiative, extending so far to just reduce the extreme prison sentence of 89 of roughly 100,000 current federal drug prisoners, in absolutely no way involves "picking and choosing which laws to enforce and which to change" nor does it somehow amount to a "blatant usurpation of the lawmaking authority of the Legislative branch."   Perhaps these assertion would make some sense if the President did in fact really grant full pardons to 100% (or even 75% or even 51%) of all federal drug prisoners/offenders and thereby wiped out entirely the convictions and sentences of truly an "entire class of offenders who were duly convicted in a court of law." But, so far, President Obama has merely shortened the extreme prison sentences of significantly less than .1% of current federal drug prisoners.

I could go on, but I will stop here by highlighting that this letter shows ways in which the current polarization of DC and the extreme disaffinity of the GOP for the current Prez necessarily impedes on the ability for folks inside the Beltway to move forward effectively with sound, sober and sensible sentence reforms.  Signing this suspect letter are a number of House GOP members who have recently spoken in favor of significant federal sentencing reform to reduce undue reliance on excessive terms of incarceration for federal drug offenders. But when Prez Obama actually does something in service to all the reform talk in Washington, his political opponents (perhaps spurred on by Bill Otis and others who oppose any and all criminal justice reforms) cannot resist the political instinct to complain.

July 15, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Tuesday, July 14, 2015

NYU Law creates Clemency Resource Center, a "pop-up, pro-bono law office to submit petitions"

Download (1)I was very excited to learn via a press release that NYU School of Law has just "announced the launch of the Clemency Resource Center (CRC), a pop-up law office within the Center on the Administration of Criminal Law (CACL)."  Via the CACL's website, here is what this important new "pop-up law office" is all about and what it is planning to do:

The CRC will exist for one year, with the sole purpose of preparing and submitting federal clemency petitions at no cost to prisoners.  Beginning with a staff of seven attorneys, the CRC will work closely with Clemency Project 2014, an ongoing initiative designed to identify and find counsel for worthy clemency candidates, and will provide pro bono assistance to federal prisoners who likely would have received shorter sentences had they been sentenced today.

The CRC was co-founded by Rachel Barkow, Segal Family Professor of Regulatory Law and Policy at NYU Law, and Mark Osler, who holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas.  Erin Collins, a former public defender and acting assistant professor at NYU Law, serves as executive director.  Generously funded by Open Society Foundations, the CRC will begin work in August.

The CRC is unique in that it addresses an immediate short-term opportunity.  President Obama has clearly signaled his intent to use the constitutional tool of clemency to address over-incarceration.

Clemency Project 2014 aims to identify all federal inmates who seek help and meet criteria released by the US Department of Justice.  The project relies entirely on the help of pro bono attorneys to review and submit petitions.  “Too many non-violent prisoners are serving unduly harsh prison terms based on repudiated laws and policies.  That means we have quite a bit of work ahead,” said Cynthia Roseberry, project manager for Clemency Project 2014.  “This is an all-hands-on-deck situation and we welcome the support of the Clemency Resource Center.”

“The CRC isn’t a clinic, or a conventional legal aid organization, or an advocacy group. It is a factory of justice,” said Osler, a former federal prosecutor.

CACL has worked on clemency cases and reform of the pardon process since 2013 as part of the Mercy Project, an initiative that pursues commutations for federal prisoners who are serving very long sentences for typically non-violent drug crimes.

“The Clemency Resource Center is the latest step in our efforts to improve criminal justice in the United States and to help correct past miscarriages of justice,” said Barkow, faculty director for CACL.

During its year of operation, the CRC will utilize the talents of CACL student fellows as well as of CACL executive director Deborah Gramiccioni, a former federal prosecutor in New Jersey and at the US Department of Justice in Washington, DC.

I adore the notion of this new Clemency Resource Center as a "factory of justice," and I am pleased to learn that this factory is being backed by Open Society funding and will be focused on churning out (surely top-notch) federal clemency petitions for the next year. That said, I hope that everyone realizes that we desperately need many more factories of justice working on not just federal clemency petitions, but also state clemency petitions and also lots and lots of aggressive state and federal criminal justice reform litigation.

July 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, July 12, 2015

Seventh Circuit panel affirms as reasonable probation sentence for tax dodging Beanie Babies billionaire

Late Friday, a Seventh Circuit panel rejected the government's claim that a probation sentence given to a high-profile tax cheat was unreasonable.  The lengthy opinion in US v. Warner, No. 14 -1330 (7th Cir. July 10, 2015) (available here), gets started this way:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.  

In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

Though the panel stresses unique factors applying only in this case to support its reasonableness ruling, white-collar practitioners (especially those in the Seventh Circuit) will find a lot of broader interest and potential value in this opinion.

Prior related posts:

July 12, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

The Marshall Project covers parole realities (and life without it)

The Marshall Project has a series of notable new piece about modern parole realities, and this lead one carries the headline "Life Without Parole: Inside the secretive world of parole boards, where your freedom may depend on politics and whim." Here is an excerpt:

America's prisons hold tens of thousands of people ... primarily confined not by the verdicts of a judge or a jury but by the inaction of a parole board. Michigan is one of 26 states where parole boards are vested with almost unlimited power to decide who gets out of prison when, and why.

With more than 1.5 million people behind bars, the United States has the highest incarceration rate in the world, and the financial costs are staggering. As politicians from both parties seek alternatives to mass imprisonment, the parole process has emerged as a major obstacle.

A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.

A recent revision of the Model Penal Code, an influential document written by legal scholars, declared parole boards "failed institutions."

"No one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals," a draft of the document says....

Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.  In New Mexico, the law directs the board to take into account "the inmate's culture, language, values, mores, judgments, communicative ability and other unique qualities."

The boards' sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members.  At least 18 states have one or more former elected officials on the board.  In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.

While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all. And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else.

"Not only are they closed, they're paranoid closed," said Janet Barton, the former operations manager of Missouri's parole board. "Closed to the extreme."  Few others in the criminal justice system wield so much power with so few professional requirements and so little accountability.

Here are the other pieces in the series so far:

July 12, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

DA planning to charge Boston Marathon bomber with murder under Massachusetts law

As reported in this new Reuters article, a "Massachusetts district attorney plans to bring state murder charges against Dzhokhar Tsarnaev, who has been sentenced to death in a federal trial for a deadly bomb attack on the 2013 Boston Marathon, her office said on Saturday." Here is why:

Middlesex District Attorney Marian Ryan said she would charge Tsarnaev with murdering MIT police officer Sean Collier and for other crimes in the aftermath of the marathon attacks. Ryan said a guilty verdict in Massachusetts could keep Tsarnaev in prison if he successfully appeals his federal convictions.

"When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense," Ryan said in a statement.

July 12, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, July 10, 2015

Evil doc gets 45 years in the federal pen for fraudulent cancer treatments

I noted in this prior post about his upcoming sentencing, I used the term evil to describe the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  Today the doctor learned our federal criminal justuce system's response to his evil deed, as this local press account reports:

A metro Detroit cancer doctor who made nearly $20 million off hundreds of patients suffering from unneeded chemotherapy and other stunningly bad treatments was sentenced today to 45 years in federal prison.

"This is a huge, horrific series of criminal acts that were committed by the defendant," U.S. District Judge Paul Borman said, later adding that Dr. Farid Fata "practiced greed and shut down whatever compassion he had." Borman said the crimes called for "a very significant sentence for very, very terrible conduct."

Fata, 50, who openly wept in court today as he apologized for his actions, admitted to fraudulently billing Medicare, insurance companies and at least 550 patients through misdiagnoses, over-treatment and under-treatment. In some cases, he gave nearly four times the recommended dosage amount of aggressive cancer drugs; in at least one, a patient was given toxic chemotherapy for five years when the standard treatment was six months, according to former patients and experts in court this week.

"I misused my talents... because of power and greed. My quest for power is self-destructive," a sobbing Fata told the court before sentencing. He said he is "horribly ashamed of my conduct" and prays for repentance.

Defense attorney Christopher Andreoff asked Borman to sentence Fata to no more than 25 years in prison, saying even that could be a life sentence because of Fata's health. "Our recommendation will give him nothing more than a chance for release before he dies," Andreoff said.

U.S. Assistant Prosecutor Catherine Dick told the court her office has "has never seen anything like this before. ,,. And that is because of the harm."

"Fata was greedy and he wanted that money," Dick said. "What this defendant did is unquantifiable. There is no way to quantify the suffering." Dick, whose office had asked for 175-year sentence, said patients died in horrible pain from Fata's treatments.

Borman had set the sentencing guidelines to 30 years to life on Thursday based on the charges and circumstances. "My role.. is to impose a sentence sufficient but not greater than necessary," Borman said this morning.

The federal court this week heard accounts of about 22 victims, who shared unthinkable experiences of a healthy adult undergoing chemotherapy and losing nearly all his teeth, of a patient diagnosed with lung cancer when he had kidney cancer, and more. Some statements were read by family members of patients who died. Some patients with no documented iron deficiencies were given overwhelming amounts of iron, while others were given lower-than-needed doses of chemotherapy drugs, experts testified.

U.S. Attorney Barbara McQuade previously called his case the "the most egregious" health care fraud case her office has seen.

Fata pleaded guilty in September to 13 counts of health care fraud, two counts of money laundering and one count of conspiring to pay and receive kickbacks. The case involves $34.7 million in billings to patients and insurance companies, and $17.6 million paid for work Fata admitted was unnecessary.

Prior related post:

July 10, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (6)

Publisher of The American Conservative explains "Why We Need Criminal-Justice Reform"

Download (14)Jon Basil Utley, who is the publisher of The American Conservative, has published in his magazine his own notable commentary headlined "Why We Need Criminal-Justice Reform: Our system incentivizes excessive prosecution and punishment — as I found out."  Here are excerpts:

Mass incarceration in America has lifted our prisoner count to 2.3 million, dwarfing that of all other nations; of federal prisoners, only 13 percent are serving time for violent crimes, while 72 percent are imprisoned for nonviolent offenses.  Altogether, Americans are held in thousands of prisons and jails.  Millions more are former prisoners or arrestees. Criminal-justice reform relates to much more than occasional killings by rogue policemen: the whole over-criminalization incentive structure driving long prison sentences and the re-sentencing of parolees in the judicial system needs publicizing and reform.  The multibillion-dollar cost of policing and jailing nonviolent offenders also takes money that our cities (or taxpayers) could well use for civilized betterment.

Our judicial system has some serious flaws, particularly its quest for guilty verdicts and incarceration.  I first learned about the drive for convictions through an experience with a former employee.  He was arrested for getting in a fight with a drunken resident in a business I once owned.  He had called the police himself after hitting the man with his nightstick during a fight.  (We knew the man was drunk from blood tests at the hospital where the man was treated and released the same night.)  The defense attorney, paid by the city, strongly urged my man to plead guilty, telling him that he would easily get off with probation and a few hours of community service.  My employee said that then he would then have a criminal record. But the attorney warned that if he went to court he risked spending years in jail. Later I learned that the attorney was paid little more to fight the charges than to have her client offer a plea bargain. I said to her that I would double whatever legal fees she earned from the court if she would defend him in pleading innocent. She agreed.

After three court dates, the other man never appeared, so my employee’s lawyer asked the prosecutor to drop the case, but the prosecutor refused.  I saw that the prosecutor wanted to collect convictions to help her own career.  Finally, after the other man missed yet another court appearance, the prosecutor agreed to drop the case.  That’s how I saw first-hand how the judicial system obtains so many guilty verdicts, which eventually result in so many imprisonments.  The system is called “meeting and pleading,” as described by former Baltimore police officer Michael Wood. And now, with computerized records, once a man has a conviction he won’t be hired by all sorts of businesses.  In fact, businesses risk being sued for “negligent hiring” if an employee turns out to be a former felon and commits another crime at work.

Reason has published about related problems with sex-offender registration.  Through plea bargaining, thousands of men are on sex-offender lists that don’t distinguish violence by strangers against minors from such “crimes” as urinating in public or exposure.  Reason notes that according to Human Rights Watch, some states’ sex-offender lists include teenagers who had consensual sex with other teens. In Pennsylvania, 14-year-olds were subject to lifetime listing as sex offenders.  The idea behind lifetime penalties for being a sex offender was the impression that most such acts were violently committed by strangers upon small children and that such offenders represented a continuing menace.  But in practice the punishment can mean a lifetime of stigma and economic ruin inflicted upon people who pose no such risk and have not committed any comparable act....

Reform is beginning, but it is very slow.  Both Republicans, who used to support mass incarceration, and Democrats, often beholden to police and prison-guard unions, have not been quick to respond.  Pat Nolan, formerly of Justice Fellowship, told me how the Obama Justice Department dawdled for years to put forward regulations to enforce the Prison Rape Elimination Act, passed in 2003, because of prison-guard union opposition.  Solitary confinement is another issue crying out for reform but also one that provides extra jobs for guards, as I was told by Jim Ridgeway, who runs SolitaryWatch.com.  A very important new group is Right on Crime, a conservative coalition supported by the Heritage Foundation, tax activist Grover Norquist, Pat Nolan, and politicians such as Newt Gingrich.  It’s now focusing on civil asset forfeiture, another egregious government abuse created in the name of fighting crime.

Slowly but certainly, Americans across the political spectrum are beginning to question and reform the criminal-justice system, even rethinking the panic-stricken measures of the past 30 years that led to so much imprisonment, so many ruined lives, and the runaway growth of police powers.

July 10, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution

As reported in this local article, headlined "Kane asks court to end Wolf's death-penalty ban," the top lawyer and prosecutor in Pennsylvania does not think much of her Governor's decision earlier this year to declare a moratorium on executions. Here are the details on the latest chapter concerning the continuing constitutional commotion over capital punishment in the Keystone state:

Calling Gov. Wolf's moratorium on the death penalty "an egregious violation" of the state constitution, Pennsylvania's top prosecutor is asking its Supreme Court to clear the path for the state's first execution in more than a decade.

In a filing Wednesday, Pennsylvania Attorney General Kathleen G. Kane asked the court to allow the execution of Hubert L. Michael Jr., who confessed to murdering a York County teenager two decades ago. Kane argued that it is "blatantly unconstitutional" for Wolf to stay all death sentences, and that allowing Wolf's moratorium to stand would effectively grant him the authority to ignore any laws with which he does not agree.

"In this case, it would allow him to negate a death sentence authorized by the General Assembly, imposed by a jury, and subjected to exhaustive judicial review . . . based on nothing more than personal disapproval and personal public policy beliefs," said the 25-page brief, filed by the attorney general and two of her top deputies. It added: "The governor must execute laws, not sabotage them."...

Wolf spokesman Jeff Sheridan said the governor had no immediate comment but would soon be "responding to the filing." Wolf in February imposed a moratorium on executions until he receives the report of a task force studying the future of capital punishment, unleashing a new round of praise and criticism. At the time, 183 men and women were on death row, confined to their cells 23 hours a day. Michael, of Lemoyne, Cumberland County, was awaiting execution for the 1993 kidnapping of Krista Eng, 16. His death warrant has been signed four times. Another convict spared by Wolf's moratorium is Terrance Williams, 48, a former star quarterback at Germantown High School sentenced to death for the 1984 murder of Amos Norwood, a 56-year-old Germantown church volunteer. He was to be executed in March.

Kane's brief asked the high court for "extraordinary relief," arguing Wolf only has constitutional power to issue reprieves of specific sentences - not an entire class of sentences - and under certain circumstances can grant a commutation or pardon. Reprieves, she argued, are meant to be temporary - usually to allow inmates to pursue legal remedies. When Wolf announced his moratorium, he wrote that he would lift it after seeing the report's recommendations and after "all concerns are addressed satisfactorily."

"What constitutes the point at which 'all concerns are addressed satisfactorily?' What are the concerns? Who is going to determine whether and when they are satisfactorily addressed?" said the filing, signed by Lawrence M. Cherba, who heads the office's criminal division, and Amy Zapp, who oversees the appeals section. "In law and in reality, the governor . . . seeks to replace judicial review of capital sentencing with his own review based on his own personal standard of satisfaction, namely an infallible judicial process that can never be attained," it argued. "Such a roadblock to death-sentence executions is impermissible."

Some prior related posts:

July 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, July 09, 2015

A few (quickie) direct appeal Johnson remands in Sixth and Ninth Circuits

Regular readers know I am (too?) eagerly anticipating all the lower court litigation that seems sure to unfold in the weeks and months ahead in the wake of the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   And now, thanks to some helpful readers and Westlaw, I can report on the first few of what might be called "Johnson sightings" in the circuit courts.

Specifically, in these two unpublished opinions handed down earlier this week, the Sixth and Ninth Circuits relied on Johnson to remand sentencing claims to district courts: US v. Darden, No. 14-5537 (6th Cir. July 6, 2015) (available here); US v. McGregor, No. 13-10384 (9th Cir. July 7, 2015) (available here).  The Darden ruling is the more notable of these two remands because the defendant was not appealing application of ACCA but rather the issue was "whether one of Darden’s previous convictions qualifies as a 'crime of violence”' under the residual clause of § 4B1.2(a)(2)" of the US Sentencing Guidelines. Here is how the Sixth Circuit panel quickly justified a remand:

In Johnson v. United States, No. 13-7120 (U.S. June 26, 2015) (slip op. at 10, 15), the Supreme Court held that the identically worded residual clause of the Armed Career Criminal Act is void for vagueness.  Compare U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).  We have previously interpreted both residual clauses identically, see United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009); United States v. Houston, 187 F.3d 593, 594–95 (6th Cir. 1999), and Darden deserves the same relief as Johnson: the vacating of his sentence.  Indeed, after Johnson, the Supreme Court vacated the sentences of offenders who were sentenced under the Guidelines’ residual clause.  United States v. Maldonado, 581 F. App’x 19, 22–23 (2d Cir. 2014), vacated, 576 U.S. __ (2015); Beckles v. United States, 579 F. App’x 833, 833–34 (11th Cir. 2014), vacated, 576 U.S. __ (2015). The same relief is appropriate here.

Critically, the vacating of these sentences on appeal does not entail the certainty of a win for the defendant upon return to the district court. But it does highlight that Johnson is likely, at the very least, to get many defendants still pressing related sentencing claims on direct appeal the important first opportunity to get back in front of the district court for a new round of proceedings.

Some prior posts on Johnson and its possible impact:

July 9, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Wednesday, July 08, 2015

Federal habeas ruling decides Virginia's geriatric release does not permit juve LWOP

A helpful reader alerted me to a notable federal habeas decision handed down last week by a federal district court in Virginia. In LeBanc v. Mathena, No. 2:12cv340 (ED Va July 1, 2015) (available here), the federal judge rejected the claim embraced by the Supreme Court of Virginia’s decision that the state's geriatric release provisions allowed the sentencing juveniles to life without parole sentences without violating the Supreme Court's Graham ruling. The LeBlanc decision has a number of powerful passages, and here are some key portions of the 32-page ruling:

Virginia Code § 53.1-40.01 governs the possible release of geriatric prisoners, and provides for the opportunity of conditional releaseto prisoners who have reachedthe age ofsixty or older and have served at least ten years of their sentence, or who have reached the age of sixty-five or older and have served at least five years of their sentence.  The Supreme Court of Virginia concluded that in light ofthis provision, Virginia's sentencing scheme can be construed as being in compliance with Graham.  The Virginia Supreme Court held that the possibility of geriatric release provides a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."...

This theory of compliance is a misapplication of the governing legal principle of Graham—that children are different and warrant special consideration in sentencing....  By relying on a geriatric release provision — a provision that by its very name was designed to be invoked by and on behalf of the elderly — in an attempt to salvage unconstitutional sentences, the Supreme Court of Virginia and the state trial court missed the heart of Graham — that children are, and must be recognized by sentencing courts as, distinguishable from adult criminals....

If it can be said that Virginia's sentencing scheme treats children differently than adults, it would be because, tragically, the scheme treats children worse.  Under Virginia's current sentencing policies, prisoners are serving sentences of life without the possibility of parole for nonhomicide offenses that they committed as children.  Like any other prisoner in Virginia, regardless of their age at the time of the offense, if these prisoners live to see the age ofsixty or sixty-five, they may apply for geriatric release.  This treats children worse than adults....

The Supreme Court has recognized that nonhomicide juvenile offenders serving life sentences must be given "the opportunity to achieve maturity ofjudgment and self-recognition of human worth and potential."  Graham, 560 U.S. at 79.  The distant and minute chance at geriatric release at a time when the offender has no realistic opportunity to truly reenter society or have any meaningful life outside of prison deprives the offender of hope.  Without hope, these juvenile offenders are being discarded in cages and left to abject despair rather than with any meaningful reason to develop their human worth.  This result falls far short of the hallmarks of compassion, mercy and fairness rooted in this nation's commitment to justice.”

July 8, 2015 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sixth Circuit holds Ohio condemned must have his Atkins claim properly considered

As reported in this local AP piece, headlined "Death row inmate wins appeal in Warren murder case," a Sixth Circuit panel yesterday issued a notable federal capital habeas rulin in Williams v. Mitchell, Nos. 03-3626/12-4269 (6th Cir. July 7, 2015) (available here). Here are the basics via the press report: 

A Warren man on death row for the brutal beating of an elderly couple may get his chance to escape the death penalty. An appeals court ruled that Andre Williams can continue to appeal his sentence claiming he was mentally disabled at the time of the 1988 crime.

George Melnick was killed and his wife Katherine was blinded in the attack.

The U.S. 6th District Court of Appeals ruled Tuesday that state courts failed to properly apply federal law governing claims of mental disability in capital punishment cases. The federal court said a lower court ruled improperly when it refused to recognize evidence of the 48-year-old Williams’ disabilities dating to when he was a teenager.

July 8, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, July 07, 2015

New research highlights racial and gender skew in elected prosecutorial ranks

Infographic-1As reported in this New York Times piece, headlined "A Study Documents the Paucity of Black Elected Prosecutors: Zero in Most States," new research spotlights that the persons most responsible for the administration of state criminal justice systems are likely the least diverse actors in the system.  Here are the basics:

Sixty-­six percent of states that elect prosecutors have no blacks in those offices, a new study has found, highlighting the lack of diversity in the ranks of those entrusted to bring criminal charges and negotiate prison sentences.

About 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men, according to the study, which was to be released on Tuesday by the San­Francisco­based Women Donors Network.  By comparison, white men make up 31 percent of the population of the United States....

While the racial makeup of police forces across the country has been carefully documented, the diversity of prosecutors, who many law enforcement experts say exercise more influence over the legal system, has received little scrutiny.  Prosecutors decide in most criminal cases whether to bring charges. And, because so many criminal cases end in plea bargains, they have a direct hand in deciding how long defendants spend behind bars.

“What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network, who led the study.

The data was compiled and analyzed by the Center for Technology and Civic Life, a nonpartisan group that specializes in aggregating civic data sets.  The Women Donors Network, which undertook the project, is composed of about 200 female philanthropists who promote a variety of causes, including diversification of elected officials by race, class and sex.

Researchers looked at all elected city, county and judicial district prosecutors, as well as state attorneys general, in office across the country during the summer of 2014. Kentucky had the most elected prosecutors, 161, and three states — Alaska, Hawaii and New Hampshire — had none.

The study found that 15 states had exclusively white elected prosecutors: Colorado, Connecticut, Delaware, Idaho, Maine, Montana, Nebraska, New Jersey, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington and Wyoming.  In Kentucky and Missouri, which also has more than 100 elected prosecutors, all but one was white, according to the analysis.  The study also found that 16 percent of elected prosecutors were white women, 4 percent were minority men and 1 percent were minority women.

“I think most people know that we’ve had a significant problem with lack of diversity in decision­making roles in the criminal justice system for a long time,” said Bryan A. Stevenson, the founder of the Equal Justice Initiative, a group that offers legal representation for poor defendants and prisoners. “I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.”...

Mr. Stevenson questions whether it is possible to diversify the ranks of prosecutors, given that most of them are elected and incumbents often serve long tenures.  With 85 percent of incumbent prosecutors re­elected without opposition, according to a study, sitting prosecutors will either need to start making diversity a priority in vetting their successors or the system will need to be significantly altered to give state bar associations and other legal entities more of a say, he said.

The new study did not look at federal prosecutors, who are appointed, or other state or local appointees.

This website provides colorful representations and related information about the study and data discussed in this New York Times article. This press release retreived via that webpage highlights these data points:

Other key findings of Justice for All*? include:

  • 3/5 of states, including Illinois, have no elected Black prosecutors.
  • In 15 states, all elected prosecutors are white. 
  • Outside of Virginia and Mississippi, only 1% of elected prosecutors are Black.
  • Latinos are 17% of the population, and only 1.7% of elected prosecutors.
  • Only in New Mexico are white men less than 50% of elected prosecutors
  • There is only one state (Maine) where the percentage of women prosecutors matches their percentage of the population (50%)

July 7, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

You be the judge: what federal sentence for evil cancer doctor?

Download (3)A few weeks ago, I was discussing with my kids whether they thought some humans were innately evil.  In any such discussion, it might make sense to bring up the story of the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  The doctor's federal sentencing began this week, and this AP story provides an overview of the proceedings and basic information to enable any would-be judges to suggest sentences for the doc in the comments:

Patients of a Detroit-area doctor received "stunning" doses of a powerful, expensive drug that exposed them to life-threatening infections, an expert testified Monday as a judge heard details about a cancer specialist who fleeced insurance companies and harmed hundreds of people.

Dr. Farid Fata is headed to prison for fraud and other crimes. But U.S. District Judge Paul Borman first is hearing from experts and former patients about the extent of his scheme to reap millions of dollars from Medicare and other health programs.

Nearly three dozen ex-patients and family members, many dressed in black, chartered a bus to attend the hearing, which could last days. Some will testify Tuesday."This is a small fraction of the people this guy has hurt," said Terry Spurlock, 52, of Holly, who had three more years of treatments after a tumor on his neck disappeared. "He gave me so much treatment, it stopped my immune system."

Fata, 50, pleaded guilty last fall to fraud, money laundering and conspiracy. The government is seeking a 175-year prison sentence, while the Oakland County man is asking for no more than 25 years.

The government said 553 people have been identified as victims, along with four insurance companies. There were more than 9,000 unnecessary infusions or injections. "There is an aggressive approach to treating cancer. This was beyond. This was over the top," said Dr. Dan Longo, a Harvard medical professor and deputy editor at the New England Journal of Medicine, who testified Monday as a $400-an-hour expert for prosecutors after examining 25 patient files, a tiny portion of Fata's practice.

Longo was asked about patients who were given a drug called Rituximab, which can weaken the immune system if overused. It is typically given eight times for aggressive lymphoma, but one patient got it 94 times. Another got it 76 times.... Later, he told the judge that "all the files I looked at had problems, but I would not say all the treatment was inappropriate."

It was the first time that many former patients had seen Fata in months, if not years. He has been in custody since his 2013 arrest. He wore a white dress shirt and dark suit in court.

"I wanted to knock that smirk off his face," said Geraldine Parkin, 54, of Davison, who[se] husband, Tim, has survived non-Hodgkin lymphoma but has other chronic problems because of excessive treatments. "He has a lot of anger," Parkin said.

July 7, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, July 06, 2015

Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?

The question in the title of this post is my post-holiday follow-up thought in light of my prior posts here and here and here concerning the uncertain (but surely significant) fall-out from the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Summarizing prior postings, I feel confident that, thanks to Johnson, there are now (1) many hundreds — perhaps many thousands — of current federal prisoners serving lengthy ACCA statutorily-mandated prison terms that are constitutionally suspect, and (2) many thousands — perhaps many tens of thousands — of current federal prisoners serving lengthy career-offender guideline-recommended prison terms that are now subject to a new kind of legal challenge.  This post seeks to know if any of these hundreds or thousands of federal prisoners have filed new Johnson-based challenges to their sentences yet.

Among the many reasons I am eager to follow this litigation closely and ASAP is because I see so much doctrinal and practical uncertainty, both substantively and procedurally, as to how this litigation may and should play out.   Indeed, uncertainty about the impact of Johnson is the only thing I am certain about, especially in light of some recent (conflicting?) analysis of post-Johnson litigation issues I have seen.  Consider, for example, the divergent analysis of post-Johsnon issues in this piece by Gray Proctor titled "Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?" and in this blog post by Steven Sady titled simply "Johnson: Remembrance Of Illegal Sentences Past."

Long story short, there is sure to be a long litigation story behind every prisoner's effort to use Johsnon to shorten his lengthy prison term.  Especially for the sake of those prisoners whose current sentences are now the hardest to justify, both legally and practically, I hope these long litigation stories are getting started ASAP.

Some prior posts on Johnson and its possible impact:

July 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (7)

"Dividing Crime, Multiplying Punishments"

The title of this post is the title of this interesting article by John Stinneford which was recently updated on SSRN. Here is the abstract:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will.

This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment.  A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice.  Prior to the twentieth century, if prosecutors proposed a novel unit of prosecution for a given crime, judges asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct?; and (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice?  If the answer to both questions was yes, judges would declare the punishment invalid under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity).  By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just. 

July 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, July 03, 2015

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 02, 2015

Making the forceful (and effective) case that modern bail systems operate unconstitutionally

EJUL-slide-3This recent Slate piece, headlined ""Is Bail Unconstitutional?: Our broken system keeps the poor in jail and lets the rich walk free," highlights some impressive efforts by impressive lawyers to litigate strategically modern problems in modern bail structures.  Here are excerpts:

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing.  If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300.  And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture.  Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional.  Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront.  The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to.  While the lawsuit against Dothan has not been dropped — Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent — it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more.  The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release.  Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.  “Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk — not how much money’s in their pocket.”...

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.  The reasons for this are strategic.  For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice....

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet — only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.  For now Karakatsanis is focused on taking incremental steps.  “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Varied perspectives on the varied challenges facing varied victims

I am sometimes inclined to say to my sentencing students that crime victims, especially victims of violent crimes, are often the most important and least understood players in the criminal justice system.  Helpfully, these two new lengthy and very different pieces about different violent crime victims can help enhance our understanding:

From the New York Times here, "Full Toll From Aurora Theater Shooting Goes Untold at Trial"

From Slate here, "He Killed Her Daughter. She Forgave Him. Linda White believes in a form of justice that privileges atonement over punishment. She practices what she preaches."

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 01, 2015

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Tuesday, June 30, 2015

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, June 29, 2015

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases

Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list.  At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.

Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions.  More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).  

June 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

June 29, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)