Tuesday, March 25, 2014

"Victim Gender and the Death Penalty"

The title of this post is the title of this notable new empirical paper authored by a whole bunch of folks at Cornell Law School and now available via SSRN. Here is the abstract:

Previous research suggests that cases involving female victims are more likely to result in death sentences.  The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware.  Death was sought much more for murders of either male or female white victims compared to murders of black male victims.  Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases.  The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.

March 25, 2014 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, March 24, 2014

What procedural rights should juve killers have at parole proceedings?

The question in the title of this post is prompted by this intriguing article in the Boston Herald headlined "Killers convicted as teens could make bids for parole concessions." The piece highlights some of the intriguing and potentially controversial procedural issues that necessarily arise if and whenever a state has to figure out just what it means to give serious juvenile offenders a meaningful chance to secure parole release from a life sentence.  Here are the details:

A killer whose court victory cleared the way for dozens of lifers convicted as teens to seek freedom is expected to make new demands before a judge today, including giving cons the opportunity to cross-examine anyone who argues against their release. But Suffolk District Attorney Daniel F. Conley said Gregory Diatchenko — who was 17 in 1981 when he plunged a knife through the face and heart of 55-year-old Thomas Wharf in Kenmore Square while screaming, “Give me your money, you (expletive),” — is asking too much.

“What he’s asking for would essentially give him a new trial on a first-degree murder charge for which he was already found guilty. This is a case of a convicted killer being given an inch and now demanding a mile,” Conley said.

The Supreme Judicial Court, in a controversial bombshell decision dropped on Christmas Eve that mirrored a 2012 ruling by the U.S. Supreme Court, ruled that keeping teen killers behind bars without a chance of parole was cruel and unusual punishment because children under age 18 lack the ability to appreciate their crimes. The court, ruling on an appeal by Diatchenko, found teen killers should be given a “meaningful opportunity to be considered for parole suitability” after 15 years of incarceration.

A single SJC justice, Margot Botsford, will hear Diatchenko’s arguments today for new Parole Board rules for those convicted of murder as teens. Lawyers for Diatchenko and the Parole Board did not respond to requests for comment. Conley’s office said Diatchenko’s requests include having an appointed hearing attorney, expert defense witnesses, and the opportunity to cross-examine witnesses against him.

Conley contends, “The SJC has determined that this defendant is entitled to a parole hearing.  He shouldn’t also be afforded an unprecedented array of tactics to use at that hearing.”

Steve Brodie of Groveland, whose daughter Beth was bludgeoned to death in 1992 at age 15, told the Herald he is alarmed to learn hearings could include cross-
examination. “We don’t know where it ends,” Brodie said. Richard Baldwin, 37, who was 16 when he killed Beth Brodie, is among 61 lifers whose hearings for parole are expected to begin soon.

Personally, I do not view a defendant's request for an attorney and an opportunity to present and cross-examine witnesses at a significant sentencing proceeding to amount to a demand to "be afforded an unprecedented array of tactics."  But then again, it is easy for a lawyer and law professor like me to say that the traditional trial procedures secured for defendants by the Sixth and Fourteenth Amendments ought to be given very broad application in parole proceedings. 

The US Supreme Court has never thoroughly considered or carefully articulated exactly which traditional trial rights defendants retain or lack throughout traditional parole decision-making, though SCOTUS jurisprudence suggests that all defendants retain at least some minimal due process rights in parole proceedings.  Critically, though, these important procedural issues have not (yet) been seriously explored in the wake of the Supreme Court's recent substantive and procedural Eighth Amendment decisions in Graham and Miller concerning limits on juve LWOP sentencing. 

March 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

BRIDEZILLARegular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham.  As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first claimed that she did not mean to do it.  Then, after a federal jury trial was conducted,  but before a jury started deliberating about the charges, Graham entered a plea to second-degree murder in exchange for federal prosecutors agreeing to drop a first-degree murder charge and a count of making a false statement to authorities.

Now, as reported in this local article, headlined "Newlywed murder case unusual for federal court; sentencing Thur," it is now sentencing time. Unsurprisingly, federal prosecutors and Graham's defense team have much different views on what sentence she ought to receive for second-degree murder:

Does pushing your husband off a cliff to his death warrant serving life in prison?  Or 10 years? Or somewhere in between?  On Thursday, U.S. District Judge Donald Molloy must decide what punishment is fitting for Jordan Graham, who pushed her husband off a cliff in Glacier National Park last summer after only eight days of marriage.

After both sides had rested their case in a December trial, 22-year-old Graham pleaded guilty to second-degree murder in the death of 25-year-old Cody Johnson before the jury could enter into deliberations.

The case is relatively unusual for federal court, since accusations of murder are usually tried and sentenced in county courtrooms, but Graham pushed Johnson on federal land, said Jordan Gross, an associate professor of law at the University of Montana who teaches criminal law and criminal procedure. Federal sentencing guidelines are vague on what’s required for second-degree murder. Hence the 90-year difference in sentences the defense and prosecution are asking Molloy to hand down, Gross said.

Graham was charged with first-degree murder, a lesser included charge of second-degree murder and making false statements to law enforcement. For first-degree murder, prosecutors must prove there was intent on the defendant’s part, where intent is not required for a second-degree murder conviction.

Although Graham pleaded guilty, prosecutors rehashed in their sentencing memorandum that Johnson was found without his wedding ring or car keys and hinted at the possibility that Graham had indeed intended to kill her new husband. Graham’s defense team contends that the circumstances of the evening were a recipe for disaster and that the incident was more akin to an accident. “She pleaded guilty, but that doesn’t mean that the prosecution can’t come in and argue her sentence up to life because that’s what the statute says,” Gross said. Federal statutes also don’t stipulate a required minimum sentence.

The benefit of pleading guilty before the jury could return a verdict is that it shows Graham accepts responsibility for her actions, Gross said. “There are shades of acceptance of responsibility,” though, Gross said, adding that in Graham’s case, she didn’t spare Johnson’s family the anguish of taking the stand and reliving their pain during a trial.

Letters from family and friends in support of Graham and letters filed on behalf of the prosecution, also will play a role in Molloy’s determination — and give insight from those who know Graham and Johnson best.

Brad Blasdel, who knew Graham for several years through her family, wrote that she was quiet and shy on the surface but cold and calculating underneath and showed no emotion about Johnson’s death. “Not once did I see any sign of remorse in Jordan for killing Cody,” he wrote, asking Molloy to consider the woman’s callousness during sentencing. “She took Cody’s life with premeditation and malice; now she must give hers,” he continued.

Cyndi Blasdel called Graham a “quiet instigator” who frequently encouraged bad behavior in others from the time she was a child. After Graham and Johnson’s engagement, Graham’s behavior became increasingly erratic, to the point of murder, Blasdel said. “Jordan Graham knew what she did was wrong and knew the consequences. She needs to be held accountable. She is not a nonviolent offender. Those of us who know her are afraid and some of us still sleep with the lights on,” she wrote.

People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church and served as a mentor to other young women.

Graham’s stepfather, Steven Rutledge, wrote he feels Johnson’s death was a terrible accident. “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.”

If Molloy is lenient, Graham has the potential to become a contributing member of society, her mother, Lindele Rutledge, wrote. Her daughter has shown remorse repeatedly in letters, through phone conversations and during visitation times, Rutledge wrote. “She has never been in trouble with the law. Her only record is a couple of speeding tickets. By showing her leniency she could get a college education and become a better and useful member of society.”...

Graham also likely will address Molloy during Thursday’s hearing in U.S. District Court in Missoula. It will be her opportunity to interact with Molloy outside of the case facts, said Paul Ryan, who has practiced law in Missoula for 20 years. Her comments to the judge will allow her to personally explain why she pushed Johnson and convey if she truly accepts responsibility for her actions, Ryan said.

Johnson’s mother, Sherry Johnson, as well as several other family members, will make comments during the sentencing hearing too. “They’re usually the most emotional and they can certainly carry a lot of weight with the judge,” Ryan said. What Johnson’s family feels is appropriate punishment also will factor into the decision, as will the impact to the victim, he said. “In this case, it was fatal. There can’t be a greater impact on a person than that,” he added.

As the title of this post highlights, I think this upcoming sentencing provides an extraordinary opportunity for me to explore with students critical sentencing issues ranging from views on how offense facts beyond the offense of conviction ought to impact sentencing and whether post-offense behavior by the defendant ought to play a large role at sentencing.  

In this prior post, I noted some of the federal sentencing guideline issues that this case necessarily raises.  Specifically, the guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim."   Should that apply here?  Also, I believe federal prosecutors have calculated the guidelines to include enhancements for obstruction of justice and without any reduction for acceptance of responsibility based on the lateness of the plea.  Are those fair and proper as sentencing consideration?

I could go on and on, but I want to save some of the fun for my students in class this week.  In the meantime, though, I would love to hear from readers (especially those who are regular sentencing practitioners) about what elements of this high-profile case provide especially good teaching ideas.

Previous related posts (with lots of interesting prior comments):

March 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

SCOTUS grants cert to explore how many procedural angels can dance on a habeas pin

The snarky title of this post is my reaction to the one cert grant today by the Supreme Court in a capital case from Texas, Jennings v. Stephens [Order List available here].  Upon first seeing news of a grant in a capital case from Texas, I was hoping that the Justices might be taking up some meaty substantive death penalty issue.  

But, as the Order List explains, "petition for a writ of certiorari is granted limited to Question 4 presented by the petition." And here, as summarized via this case page at SCOTUSblog, is that question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Though I could be wrong on the fact here, I would guess that this specific federal habeas procedural issue arises maybe a couple of times each year at most. It is pretty rare that federal habeas petitioners prevail in the district court, and surely rarer still that a circuit court would on appeal thereafter ding that petitioner on a procedural issue. When there are thousands of cert petitions from defendants raising issues that could impact tens of thousands of criminal cases, I am both intrigued and annoyed that SCOTUS decides to take up a case likely to impact at most a handful of capital cases.

Of course, this issue of habeas procedure is obviously a very big deal to death row petitioner Jennings, and a number of Justices are likely troubled by how the Fifth Circuit handed this case. But would not a summary reversal be a more efficient and effective way to deal with this issue if a majority of Justices are troubled by the procedural maneuver pulled by the Fifth Circuit?

March 24, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, March 22, 2014

Florida state judge balks at 50-year proposed sentence for notable child porn downloader

As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:

A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide.  Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.

Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.

Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.

Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.

Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.

Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....

Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.

March 22, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 20, 2014

Illinois Supreme Court deems Miller ruling substantive and thus retroactive

As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:

The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....

With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling.  Minnesota, Pennsylvania and Louisiana are among the states that have refused....

“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.

The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:

As the Iowa Supreme Court recognized:  “From a broad perspective, Miller does mandate a new procedure.  Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013).  In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole.  See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013).  Since Miller declares a new substantive rule, it applies retroactively without resort to TeagueSee Schriro, 542 U.S. at 351-52 & n.4.

Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review.  Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence.  While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review.  See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.

We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity.  However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument.  See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).

March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball

I am pleased to see that my discussion of the Antwuan Ball case in this recent post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims," has now generated a pair of thoughtful posts at The Volokh Conspiracy:

Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?", which ends with this paragraph:

In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.

Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence," which concludes with these thoughts:

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.”  He then reiterated this point in Gall.  (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)

This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).

March 20, 2014 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Texas officials get hooked up by special secret (capital) drug dealer

As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:

Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.  But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.  "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.  Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.

Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....

Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence.  "This might be good stuff," he said.  "And the roads are getting very short here."

But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment.  "There are a lot of drugs, and Texas can be creative in finding some," he said.

Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1.  The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week.  That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said.  The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.

Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982.  The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....

Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.  Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents.  It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.

Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.  In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....

Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."

March 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 19, 2014

"Efficiency shouldn’t trump effectiveness in drug sentencing"

The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform.  Here is the full text of the letter as published:

As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.”  At best, the objections by some federal prosecutors to sentencing reform ring hollow.  At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.

Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial.  That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem.  If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.

The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.”  It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.

Mandatory minimums do create efficiency.  But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

March 19, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Oklahoma court postpones two executions due to drug shortages

As reported in this AP article, an "Oklahoma court on Tuesday rescheduled a pair of executions set for this week and next, so state prison officials will have more time to find a supply of drugs for the lethal injections."  Here is more about the latest challenge facing a state trying to carry out a death sentence:

The decision came in a lawsuit in which two inmates had sought more information about the drugs that would be used to execute them later this month.  The inmates had sought a stay of their executions, but the Oklahoma Court of Criminal Appeals said that request was moot because the state Department of Corrections doesn't have enough drugs on hand to carry out their death sentences.  "The attorney general's attestations give this court no confidence that the state will be able to procure the necessary drugs before the scheduled executions are carried out," the court wrote.

Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments.  While the judges didn't rule on the merit of the inmates' stay request, they pushed their executions back a month — Clayton Lockett to April 22 and Charles Warner to April 29....

Oklahoma Attorney General Scott Pruitt said he is upset the executions have been delayed, but said Warner and Lockett will ultimately still be punished for their crimes.  "This delay is not about the facts of the case, nor does it seek to overturn the convictions of these two murderers. Instead, it's about outside forces employing threats, intimidation, and coercion to keep the state of Oklahoma from imposing the punishment handed down for these heinous crimes," Pruitt said.  "It's not a matter of if these punishments will be carried out, but it is only a matter of when."

Lockett, who was to be executed Thursday, was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was set to be executed on March 27 for the 1997 rape and murder of his girlfriend's 11-month-old daughter.  In their lawsuit, Lockett and Warner said they feared the drugs to be used might be contaminated and cause them undue harm, in violation of a constitutional guarantee against cruel or unusual punishment.  A hearing in Oklahoma County District Court is set for March 26 on whether it's proper for the state to keep execution procedures behind a "veil of secrecy."

"We are relieved that the OCCA's decision allows Mr. Warner and Mr. Lockett to proceed on their constitutional challenge to Oklahoma's execution-secrecy law and execution protocol," Madeline Cohen, a federal public defender who previously represented Charles Warner, said. "We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs."

In briefs filed with the Court of Criminal Appeals on Monday, the state attorney general's office said prison officials were having difficulty finding pentobarbital, a sedative, and vecuronium bromide, a muscle relaxant. The state also uses potassium chloride to stop an inmate's heart. "The state declared it had pursued 'every feasible option to obtain the necessary execution drugs' but its 'Herculean' efforts so far had been unsuccessful," the court wrote.

State lawyers warned that, if it is required to find different drugs, it would have to write a new execution protocol that would likely face another court challenge. Judge Gary L. Lumpkin dissented Tuesday's decision. He said the inmates had failed to meet their burden for a stay but said the court shouldn't have granted a delay because the state hadn't asked for one.

March 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 18, 2014

Despite legislative abolition, Connecticut jury imposes death sentence on triple murderer

This local article from Connecticut reports on the outcome of the last capital case that was still in the works when the state abolished, prospectively only, the punishment of death.  The article is headlined "Roszkowski gets death row for triple murder," and here are the basics:

A career burglar from Trumbull became the 12th and last resident of Connecticut's death row when a jury found he should die by lethal injection for the execution-style murders of a mother, her 9-year-old daughter and a Milford landscaper. "I won't have any trouble getting to sleep tonight because I know we did the right thing," said juror Cedric Grech, shortly after a state Superior Court jury on Monday handed down the penalty for Richard Roszkowski.

"Right now I'm emotionally drained," said juror Ladawn Newton. "But I know that mother, her little girl and Mr. Gaudet and their families can finally have peace in their lives, and that makes me feel good that we made the right decision."

The fact that he will now be in the history books -- albeit for one of the worst crimes in the city's history -- didn't appear to affect the 48-year-old Roszkowski, who sat emotionless at the defense table as the verdict was read by Court Clerk Thomas Saint John.

It was certainly not lost on his lawyer, Michael Courtney, who had bragged in the courtroom during the two-month trial that he had never lost a Connecticut death case. Courtney's face turned bright red and he shook his head mouthing, "No, no, no" as the verdict was announced. Meanwhile, his co-counsel, Corrie-Ann Mainville, moved up to Roszkowski and began massaging his back and shoulder, whispering in his ear.

"This verdict was for Kylie," said C. Robert Satti Jr., who prosecuted the case along with Margaret Kelley, referring to the murdered girl. Satti's father, C. Robert Satti Sr., had successfully prosecuted the last man executed in this state, serial killer Michael Ross, who died by legal injection in 2005 after 20 years on death row. "It was an extremely conscientious jury that weighed the facts and the evidence and came to the appropriate verdict," Satti said.

Several jurors said it was the brutality Roszkowski showed the girl that earned him the death penalty. "There was just no excuse for what he did to the little girl," Grech said....

In a strange twist in the case, the president of Poland -- Roszkowski is of Polish descent -- is demanding that the U.S. not execute him; the courts have not yet addressed the issue.

In April 2012, Gov. Dannel P. Malloy signed a law eliminating the death penalty, but kept it in place for the 11 people now on death row. The Roszkowski case, which was pending at the time the law was signed, is the state's last death-penalty trial.

March 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

As a matter of law, policy and practice, what should be the "offense" a sentencer considers?

The question in the title of this post is arguably the most fundamental and important question (and one which is conceptually and practically quite difficult) for any and all sentencing systems.  And yet, this question seems rarely examined or even discussed except when there is controversy over issues like the use of acquitted or uncharged conduct in a guideline sentencing system.  Because I will be exploring this question with my sentencing students in coming classes, I am quite eager to have readers of this blog share their perspectives.

Some important consensus realities help explain why the question is conceptually and practically quite difficult: (1) nearly all sentencing systems and observers agree that the offense(s) of conviction must be a necessary and critical part of the "offense" to be considered at sentencing, but (2) nearly all sentencing systems and observers agree that at least some non-conviction, offense-related factors (such as motive and leadership role) should also be considered sentencing.  In other words, there is a consensus view that the "offense(s) of conviction" are a central but non-exclusive part of what I would call the "offense for sentencing."  That consensus, in turn, presents critical follow-up questions concerning just how a sentencing system (A) can/should define and process the "offense(s) of conviction" and (B) can/should allow, structure and/or require of any variety of non-conviction, offense-related factors.  Some of the most challenging and controversial issues of modern sentencing can often hinge on matters related to these follow-up questions/categories A and B.  

For example, under category A, a sentencing system must consider cases in which a defendant is convicted of multiple offenses and decide if a sentencer must or should group multiple convictions for sentencing consideration or should instead consider each offense distinctly and then combine in some way the sentence determined separately for each offense.  Also under category A are hard questions about offenses that have as a fundamental element the requirement of a serious prior conviction — like failure to register as a sex offender or felon in possession of a firearm.   A sentencing system has to consider if a sentencer must or should view the nature and circumstances of the predicate prior offense as important in consider the new offense of conviction.

Hard issues raised under category B are even more common and often much more controversial.  For example, if/when a defendant has been charged but not convicted of offense-related conduct either because of a jury acquittal or a plea deal, can/should/must a sentencer consider (or be barred from considering) facts and factors related to charged but unconvicted conduct?  In addition, just how much weight can/should/must a sentencer give to offense-related factors that are rarely part of a formal conviction (factors like motive and leadership role and victim impact), but that are often thought central to understanding how truly serious any specific offense really is. 

March 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"The Criminal Court Audience in a Post-Trial World"

The title of this post is the title of this interesting new article by Jocelyn Simonson available via SSRN. Here is the abstract:

Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness.  When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day — people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime.  This is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.

The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court.  This Article argues that these rights apply with full force in the routine criminal courtroom, in which arraignments, pleas, and sentencings, rather than trials, are taking place. Recognizing and enforcing the constitutional protection of the audience will require local criminal courts to grapple with widespread issues of public exclusion from the courtroom.  Doing so has the potential to play a part in reinvigorating the lost connection of the public to the realities of routine criminal justice, linking a generally disempowered population to mechanisms of government accountability and social change.

March 18, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 17, 2014

You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?

White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:

The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.

Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.

Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud.  They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.

The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent  — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes.  At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts.  The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.

Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties.  Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.

Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”

At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.”  Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed.  He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.

If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states.  Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children.  “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”

David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence.  A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.

Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial.  Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender.  He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”

A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation.  Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.

Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial.  That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.

Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments.  Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....

Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program.  By April 2010, Helping Hands was billing Medicaid for $1 million per month.  The agency closed for good in 2011.

Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?

You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).

March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

"Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing"

The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets the attention I have long thought it deserved.  Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves.  But what do sitting federal judges think about allocution?  Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions?  These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States.  This Article provides a summary and analysis of the participants’ responses.  Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences.  Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible.  Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.

March 17, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (35) | TrackBack

Sunday, March 16, 2014

The state of the death penalty in the Sunshine State

This lengthy new Orlando Sentinel article, headlined As death penalty wanes in U.S., Florida executes even more killers," provides a review of capital realities in a state that now leads even Texas in number of executions in 2014 so far. Here are some of the details:

Robert Lavern Henry is set to be executed this week for killing two women in 1989 by beating them with a hammer and setting them on fire in a Deerfield Beach fabric store. He would be the 16th prisoner executed under Gov. Rick Scott's watch, more than any other modern Florida governor in a single term.

At a time when other states are curtailing or outlawing executions, Florida is bucking the trend. A swelling number of death sentences handed down in the 1990s are reaching the ends of their appeals. Florida also is experiencing a rare window of relatively few legal challenges, botched executions or political infighting over the issue....

Florida has been more likely to hand out death sentences and is the only state that doesn't require unanimous jury recommendations for the death penalty. Florida's 15 death sentences and California's 24 accounted for nearly half of the death sentences dealt nationwide in 2013, according to the Death Penalty Information Center.

Only nine states carried out executions in 2013, and Maryland became the sixth state in six years to outlaw the death penalty. Meanwhile, Florida executed seven people in 2013, second only to Texas with 16. Florida leads the country with three executions so far this year.

Yet some experts say the Sunshine State's death-penalty system needs sweeping change. Christopher Slobogin, a law professor at Vanderbilt, chaired the American Bar Association's Death Penalty Assessment Team, which in 2006 issued a study that pronounced Florida capital punishment deeply flawed.  It recommended a top-to-bottom review to ensure innocent people weren't being executed. But that never happened. "As far as I can tell, the Florida system remains in just as much disarray as when we looked at it," he said.

Some lawmakers are still trying to carry out one of the team's proposals to require unanimous jury sentencing recommendations for the death penalty. "Florida is an outlier," said Rep. José Javier Rodríguez, a Miami Democrat sponsoring the bill, HB 467.

Instead, lawmakers and governors have tried repeatedly during the past three decades to accelerate executions....

The latest example is the 2013 "Timely Justice" law, which required the clerk of the Florida Supreme Court to certify a list of cases ready for death warrants. In October, the clerk sent a list of 133 names where appeals had been exhausted to Scott's office, out of the about 400 people on death row.

The law set timelines for when Scott must act on those names, although his office still solely determines when the clemency process has been exhausted. "I think over time we'll see the average amount of time people spend on death row decrease exponentially," said Rep. Matt Gaetz, R- Fort Walton Beach, who sponsored the bill. "The effect is clear." Florida death-row inmates wait about 14 years on average to die, the Department of Corrections says....

This past summer, a group of lawyers representing death-row inmates challenged the "Timely Justice" law as a violation of separation of powers and due process for inmates. The Florida Supreme Court heard arguments last month but hasn't ruled yet.  Lawyers last week asked the court to delay Henry's execution until a decision is rendered, but the justices Friday denied that request.

March 16, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Saturday, March 15, 2014

Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively

As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively.  Here are the basics:

The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery.  Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.

The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane.  Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.

The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.

Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence.  The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote.  But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.

Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....

Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.

Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.

March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack