Wednesday, April 08, 2015

Larry Flynt hustles his way into Missouri litigation over lethal injection

As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:

A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.

Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.

Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.

Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....

Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....

“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.

April 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 07, 2015

"Miller V. Alabama and the Retroactivity of Proportionality Rules"

The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN.  Here is the abstract:

In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors.  What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided.  In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not.  The Supreme Court is all but certain to decide the issue in the near future.

I make two primary arguments in this Article.  The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.”  The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee.  As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality.  I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded.  Proportionality rules should therefore be afforded something close to a presumption of retroactivity.

Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class.  Coincidence?

April 7, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

New Urban Institute report examines challenges posed by mentally ill offenders

The Urban Institute today released this significant new report titled "The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis." Here is an excerpt from the first few paragraphs of the report's executive summary (with few references omitted):

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health.  According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population.  An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.  These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.  Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly.  In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.

Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic.  There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders.  This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.

This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons.  It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges.  Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders....

April 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

"What’s the right way to compensate someone for decades of lost freedom?"

The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions.  Here is an excerpt:

One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard.  In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.”  He noted, “European countries have long recognized that such indemnity is a public obligation.”  But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.”  It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.

There is still no consensus about the value of lost time.  Missouri gives exonerees fifty dollars a day for time served, California twice that much.  Massachusetts caps total compensation at half a million dollars.  In Maine, the limit is three hundred thousand; in Florida, it’s two million.  The variation is largely arbitrary.  “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me.  In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979.  “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.”  Most states levy taxes on payment.  Twenty states have no compensation statutes at all.

Fifteen hundred and seventy-five people have been exonerated in the U.S.  The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.”  These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors.  (The same legal principle is at issue in federal suits brought by people who have been shot by the police.)  In such cases, the potential damages are unlimited.  But the standard of proof is high.  “Police officers have qualified immunity,” Garrett told me.  “They can violate your constitutional rights — reasonably but not egregiously.”

April 7, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Saturday, April 04, 2015

In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)

GrassleyWith respect to sentencing policy and procedure, I frequently disagree with the current Chair of the Senate Judiciary Committee, Charles Grassley.  But on the topic of federal court transparency, I surmise that Senator Grassley and I have very similar views as evidence by this new National Law Journal op-ed penned by the Senator.  The piece is headlined "Legislation Allowing Cameras in the Courtroom More Important Than Ever, and here are excerpts:

In [the Boston Bombing] high-profile case and countless others, the mechanics of our criminal justice system work day in and day out to provide equal justice under the law.  Before a jury of peers, prosecutors make the government's case on behalf of the people, and the defense works to give the accused a fair trial.  America's system of justice, including our bedrock constitutional principles guaranteeing due process, a fair and speedy trial, and the right to counsel, is a tangible right of citizenship that too often goes unnoticed. That's because a majority of Americans aren't able to look under the hood to see it — at least not in federal courts, which ban cameras from their courtrooms.

The federal trial in Boston carries significant public interest.  And yet, the ban on cameras disallows the public to bear witness to the public proceeding.  Courtroom sketches and tweets from reporters arguably don't do justice for most people, especially those who have a keen interest to see justice served.

In this day and age when the American public is hard-wired to access what they want to see, when they want to see it, it's hard to square the injustice of essentially banning broad civic engagement from our judicial system by banning cameras from the federal courtroom.

Blockbuster trials certainly ­generate a lot of attention.  They renew ­interest in something I've been working to achieve for nearly two decades.  And that is to unlock the federal courtroom door to cameras.  As a co-equal branch of the federal government, the federal judiciary serves a fundamental function in our ­system of self-government.  It alone interprets the constitutionality of laws passed by Congress and managed by the executive branch.  Although removed from electoral politics by constitutional design, the federal judiciary and Article III judges are not part of a royal class or monarchy.  The federal judiciary is the custodian of constitutional rights and providing equal justice under the law. If anything, the federal judiciary ought to be the first to throw open the shutters to bring this extraordinary branch of government to life for ordinary Americans.

As a longtime crusader for more transparency, I've worked to spread sunshine through the halls of the federal government.  Transparency, and the accountability that comes with it, renews credibility in our institutions of government and strengthens our free and open society.  The same goes for civic engagement.  Allowing courtroom proceedings to be broadcast would give more citizens an opportunity to develop a better appreciation for the federal judiciary and how the wheels of justice serve the public good.

With very few exceptions, the public's business ought to be public.  Period.  My leadership on this issue has prompted a few steps in the right direction, such as the adoption of pilot programs to allow cameras into some federal courts.  The most recent program was launched in 2011 and includes 14 federal trial courts.  So far, the sky has not fallen and the program will wrap up this summer.  The courts will report back to Congress next year.

Each of the 50 states allows some level of camera access in their courtrooms.  As far as I know, the recording and broadcasting of state trials haven't turned the carriage of justice into a pumpkin.  To me, it's a miscarriage of justice that the 20th century courtroom camera ban still exists in the 21st century at the federal level....

[M]y bipartisan bill would allow the presiding judge discretion to protect the privacy of witnesses and private conversations among clients, lawyers and the judge.  It prohibits the televising of jurors and includes measures to protect due process rights.  The bipartisan verdict on this issue exceeds reasonable doubt. Allowing cameras into the federal courtroom would foster better civic engagement with our courts of law and, ultimately, strengthen the court of public opinion about the integrity of our judicial system in American society.

The burden of proof is clear.  It's time to lift this arbitrary barrier to transparency.  Let's end the camera ban and raise the bar on good government.

I could not agree more strongly with this forceful assertion by Senator Grassley: "With very few exceptions, the public's business ought to be public. Period."  Now I just wish Senator Grassley would come to understand that his righteous commitment to transparency and accountability in the federal criminal justice system is deeply undermined by his steadfast support for federal mandatory minimum sentencing statutes and the extraordinary hidden power they place in the hands of unelected federal prosecutors.

Existing federal mandatory minimum statutes enable federal prosecutors to make profoundly consequential sentencing decision behind closed doors without any explanation, transparency or accountability. The US Sentencing Commission and others have frequently documented the profound sentencing impact of the hidden charging and bargaining decisions made by federal prosecutors using mandatory minimum sentencing provision.  It is near impossible to even know what decisions are being made by prosecutors in the use of mandatory minimum sentencing provisions, let alone to assess effectively the legitimacy of the factors employed by prosecutors in their charging and bargaining decisions, because prosecutors need never explain or justify these sentencing decisions in any way.

My general disaffinity for federal mandatory minimum sentencing statutes is deeply based in my strong belief that "the public's business ought to be public."  Because it seems Senator Grassley is truly and deeply committed to the values of transparency and accountability in the federal criminal justice system, I hope he will at some point come to understand how his support for federal mandatory minimums problematically disserve these critical values.

April 4, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, April 01, 2015

"A Republican Governor Is Leading the Country's Most Successful Prison Reform"

The title of this post is the headline of this notable new piece from The New Republic.  Here are excerpts:

During his second inaugural address this past January, Georgia Governor Nathan Deal shared the story of Sean Walker. After serving 12 years of a life sentence for murder, Walker was paroled in 2005 and began working in the governor’s mansion while in a state transitional center. At the time of Deal’s address, Walker was working for Goodwill as a banquet catering sales coordinator and was nominated for Goodwill International Employee of the Year. As of January, Walker was planning to take college courses with the hope of becoming a counselor.

Deal, who got to know Walker at the governor’s mansion, shared the story to underscore his own “message to those in our prison system and to their families: If you pay your dues to society, if you take advantage of the opportunities to better yourself, if you discipline yourself so that you can regain your freedom and live by the rules of society, you will be given the chance to reclaim your life.” He continued, “I intend for Georgia to continue leading the nation with meaningful justice reform.”

That last sentence could seem at best like optimism, and at worst like hyperbole. However, one could reasonably argue that Georgia is doing more to reform its criminal justice system than any other state in the country — from sentencing to felon employment after release to juvenile detention.

Over the last four years, mandatory sentencing minimums have been modified, and judges’ discretion in sentencing has been expanded. The adult prison population has been given enhanced access to educational resources, including a program that enables two charter schools in the state to go into prisons to teach inmates, and those participating earn a high school diploma instead of a GED. (Studies suggest that some recipients of a GED tend not to fare any better in employment prospects than high school dropouts do.)

In addition, inmates with felonies applying to work for the state no longer have to check a box on their job applications that discloses their criminal histories and would often disqualify them from being considered for a job from the outset. “We banned the box,” said Deal, “It is not going to affect them getting an interview.” The state has also invested $17 million into measures aimed at reducing recidivism and rehabilitating low-risk, nonviolent offenders — including expanding accountability courts like those for drug use and DUIs, and funding community-based programs that have already proven to be more cost-effective than a prison sentence and are designed to reduce crime in the long run....

Some, like Vikrant Reddy, a senior policy analyst at Right on Crime and at the Texas Public Policy Foundation’s Center for Effective Justice, label Georgia’s criminal justice reforms conservative because they are saving the state millions, putting them in line with conservative fiscal values. Others, like Alison Holcomb, the national director of ACLU’s Campaign to End Mass Incarceration, call the reforms expansive for their holistic agenda—with improving educational and re-entry opportunities for inmates at the top of the list. The reforms have been called innovative, though some argue that it isn’t the reform initiatives themselves, so much as the way they’re being applied together that is unprecedented.

April 1, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism"

The title of this post is the headline of this notable new article by always interesting Christopher Slobogin. Here is the abstract:

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice — to wit, retributivism and adversarialism. This article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system where retribution is no longer the lodestar of criminal punishment, and where party-control of the process is no longer the desideratum of adjudication.

If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.

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

Monday, March 30, 2015

"Monitoring Youth: The Collision of Rights and Rehabilitation"

The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime.  In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals.  But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness.  Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.

This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts.  After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.

Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny.  The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits.  This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.

March 30, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

California and Ohio facing capital congestion without a functioning execution chamber

Theses two local stories concerning death row realities in two states strike a similar note:

From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:

With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room.  Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison.  The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.

California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel.  Through it all, the death row population has grown from 646 in 2006 to 751 today.

From Ohio here, "Backup of killers awaiting execution is building."  This story starts this way:

Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building.  There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]

Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.

March 30, 2015 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement

In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here).  The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."  

But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring.  Here are key passages from the ruling in Grady:

Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender.  See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013).  Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes.  He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures.  Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....

The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling].  And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.  That theory is inconsistent with this Court’s precedents....

[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information.  If the very name of the program does not suffice to rebut this contention, the text of the statute surely does....  The State’s program is plainly designed to obtain information.  And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program’s constitutionality.  The Fourth Amendment prohibits only unreasonable searches.  The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.  See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable).  The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.

March 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 29, 2015

Previewing the little SCOTUS capital case examining what procedure Atkins may require

On the last Monday of March 2015, the only case being heard by the U.S. Supreme Court is a quirky capital case from Louisiana, Brumfield v. Cain, which appears only to concern the process by which a state rejects a defendant's claim that he is intellectually disabled and thus prohibited from execution after Atkins.  Here are the questions presented:

(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Lyle Denniston provides this SCOTUSblog preview, which notes that the lone amicus brief filed in this case highlights that Louisiana's "state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration."  In short, it seems unlikely that the Brumfield case will be of great consequence for anyone other than killer Kevin Brumfield. But one never knows what the Justices will do with a capital case.

March 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Local Tennessee prosecutors pushed for female sterilization in plea discussions

A helpful reader alerted me to this stunning AP article about a stunning aspect of what some local prosecutors sometimes incorporated into plea discussion with female defendants in Tennessee.  The piece is headlined "Attorneys: Sterilizations were part of plea deal talks," and here are some of the details:

Nashville prosecutors have made sterilization of women part of plea negotiations at least four times in the past five years, and the district attorney has banned his staff from using the invasive surgery as a bargaining chip after the latest case.

In the most recent case, first reported by The Tennessean, a woman with a 20-year history of mental illness had been charged with neglect after her 5-day-old baby mysteriously died. Her defense attorney says the prosecutor assigned to the case wouldn't go forward with a plea deal to keep the woman out of prison unless she had the surgery.

Defense attorneys say there have been at least three similar cases in the past five years, suggesting the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of a court .

Sterilization coerced by the legal system evokes a dark time in America, when minorities, the poor and those deemed mentally unfit or "deficient" were forced to undergo medical procedures that prevented them from having children.

"The history of sterilization in this country is that it is applied to the most despised people — criminals and the people we're most afraid of, the mentally ill — and the one thing that that these two groups usually share is that they are the most poor. That is what we've done in the past, and that's a good reason not to do it now," said Paul Lombardo, a law professor and historian who teaches at Georgia State University.

Davidson County District Attorney Glenn Funk agrees. A former defense attorney who took over the office in September, he recently ordered lawyers in his office not to seek sterilization by defendants. He said he hadn't heard of it happening before but didn't ask. Funk said people could be ordered to stay away from children, and the state wouldn't have to resort to such invasive measures. "The bottom line is the government can't be ordering a forced sterilization," Funk said.

However, such deals do happen.

In West Virginia, a 21-year-old unmarried mother of three agreed to have her tubes tied in 2009 as part of her probation after she pleaded guilty to possession with intent to distribute marijuana. And last year, a Virginia man who fathered children with several women agreed to undergo a vasectomy in exchange for less prison time in a child endangerment case.

Forced sterilization came up in a different way in California last year, when Gov. Jerry Brown signed a bill that banned state prisons from forcing female inmates to be sterilized. The law was pushed through after the Center for Investigative Reporting found that nearly 150 female prisoners had been sterilized between 2006 and 2010. An audit found that the state failed to make sure the inmate's consent was lawfully obtained in every case ....

The assistant district attorney who worked the [most recent] case, Brian Holmgren, is a child prosecutor who speaks around the country, was once a senior attorney with the National Center for Prosecution of Child Abuse and serves on the international advisory board of the National Center for Shaken Baby Syndrome. He has been both praised and fiercely criticized for his aggressive courtroom tactics on behalf of children.... Holmgren did not respond to several messages seeking comment.

Nashville defense attorney Carrie Searcy said Holmgren asked that two of her clients who gave birth to children who tested positive for drugs undergo sterilization. Neither did, Searcy said, because both women had already undergone the procedure.

Assistant public defender Joan Lawson, who also supervises other attorneys, said she also had been involved in cases in which a prosecutor had put sterilization on the table. Lawson said it was typically not an explicit demand, was not an everyday occurrence and was made off the record. Lawson said she refused the idea and resolved her cases without sterilization. "It's always been more of 'If your client is willing to do this, then I might be inclined to talk about probation,'" Lawson said.

March 29, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, March 26, 2015

"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"

The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:

Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system.  This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences.  In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.

This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases.  At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant.  Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process.  These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller.  This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing. 

March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

New report documents huge drop in Colorado marijuana arrests since legalization

Download (7)While the impact, both good or bad, of marijuana law reform is now widely discussed and debated, there is still relatively little hard reliable data about the public health and economic consequences of these reforms.  But this new report  from the Drug Policy Alliance, headlined "Marijuana Arrests in Colorado After the Passage of Amendment 64," highlights that legalization in one state has had a profound impact on arrest data.  This DPA press release provides an overview and summary of the report, and here are excerpts:  

The report compiles and analyzes data from the county judicial districts, as well as various law enforcement agencies via the National Incident Based Reporting System (NIBRS). The report’s key findings include:

  • Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.
  • The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010 – from 30,428 in 2010 to just 1,922 in 2014.
  • According to raw data from the NIBRS, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents....
  • Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a ‘net-widening’ effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.
  • Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily due to the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.
  • The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.

“It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana,” said Art Way, Colorado State Director for the Drug Policy Alliance. “By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.”

“The overall decrease in arrests, charges and cases is enormously beneficial to communities of color who bore the brunt of marijuana prohibition prior to the passage of Amendment 64,” said Rosemary Harris Lytle, Regional Chair of the NAACP. “However, we are concerned with the rise in disparity for the charge of public consumption and challenge law enforcement to ensure this reality is not discriminatory in any manner.”

“What is often overlooked concerning marijuana legalization is that it is first and foremost a criminal justice reform,” said Denise Maes, Public Policy Director for the ACLU of Colorado. “This report reminds us of how law enforcement and our judiciary are now able to better allocate time and energy for more pressing concerns.”

Some prior related posts:

March 26, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Is it constitutional to "offer" juve offenders the alternative sentence of writing a bible essay?

The question in the title of this post is prompted by this local article about a novel alternative sentence being utilized by a judge in Mississippi.  Here are the details:

Dozens of tickets are written every month in South Mississippi for minors in possession of alcohol. It is an offense that could not only cost the person charged hundreds of dollars, it could also cause them to lose their license for up to 90 days, and even worse; it can follow them the rest of their lives. "If you enter a plea of guilty, it's on your record," Harrison County Justice Court Judge Albert Fountain said.

Fountain knows everyone makes mistakes, and instead of letting one mistake follow a young person for the rest of their life, the judge has come up with an alternative way to sentence children charged with minor in possession of alcohol. "A 1,000 word essay on The Book of Revelations and also the effects from drinking alcohol," Fountain said. "I don't force them to do that. It's their choice. That's just my recommendation. They can write it on anything they want to."

He also takes their license for 10 days and places them on a 90 day non-reporting probation with conditions of good behavior. "It just felt like I had to do something different," Fountain said. "There is more to it than just sentencing someone, and I felt I needed to make a difference."

While he knows it can be considered controversial, Fountain feels it is right. "Separation of church and state is a big topic, and I understand some people have their beliefs, but I think what's wrong with the country today is that we've taken Christ and God out of everything," Fountain said.

The judge has been sentencing children this way for the past eight to 10 years. He said about one in every 20 children choose to write an essay on something other than The Book of Revelations. "Some of the things I have gotten from them is that the fear, really reading the essays, what they ought to face in the future if they don't do the right things," Fountain said. "It's pleasing to me to see that."

March 26, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 25, 2015

You be the judge: what federal sentence for modern sheriff playing Robin Hood?

ImagesIn the legend of Robin Hood, the Sheriff of Nottingham is the tale's primary villain. But this sentencing story out of South Carolina raises the question of what federal sentence ought to be given to a local sheriff who was committing fraud as a kind of modern Robin Hood. The press report is headlined "Convicted Williamsburg sheriff asks for sentencing leniency," and here are the details:

The convicted former sheriff of Williamsburg County should be sentenced to less than the three years in prison recommended by federal officials because he succeeded despite a troubled upbringing and is being treated for a painkiller addiction, his lawyer said.

Ex-sheriff Michael Johnson faces a judge Wednesday to learn his fate after a federal jury convicted him in September of mail fraud. Prosecutors said Johnson created hundreds of fake police reports for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit card debt. The sentencing recommendation for Johnson is 30 months to 37 months in prison, according to court papers filed this week.

Johnson's attorney said that is too harsh for a man with no criminal record who cooperated with authorities. Johnson's request asks for a lesser sentence, but is not specific. Johnson has suffered from depression and anxiety the past four years. He also has migraines, high blood pressure and insomnia, lawyer Deborah Barber said in court papers.

The former sheriff also was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden, Barber said. "He resided in a poverty-stricken area in Kingstree, South Carolina, with the family not having enough money to adequately survive," Barber wrote....

Johnson joined the Williamsburg County Sheriff's Office in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010 when the former sheriff, Kelvin Washington, was named U.S. Marshal for South Carolina.

He is one of nine sheriffs in South Carolina's 46 counties to be charged or investigated while in office since 2010. Seven have pleaded guilty or been convicted, and another died while under investigation. Only two of those sheriffs so far have been sentenced to prison.

Intriguingly, this long earlier article explains some of the details of the fraud, and it suggests that sheriff Johnson may not have made any money from the scheme designed to help people to (falsely) improve their credit rating. I am disinclined to assert that sheriff Johnson is as noble or heroic as Robin Hood, but it does seem like his fraud involved trying to help some folks down on their luck by pulling a fast one on the (big bad monarchy?) credit companies. Given that the federal sentencing guidelines still call for a prison term of at least 2.5 years, I am now wondering what the real Robin Hood might have been facing in a federal fraud guideline range if he were facing sentencing today.

March 25, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Tuesday, March 24, 2015

"The Executioners' Dilemmas"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.

This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.

Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

March 24, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Should prison terms end once criminals seem "too old" to recidivate?

The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?".  Here are excerpts:

Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing.  But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011.  It was the harshest sentence available.  That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of five­year extensions if he is still deemed a risk to the public in 2033, when he is 53.

The idea of a 21-­year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty.  Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach.  He made the case for a 20­-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public.  Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”

This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....

Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20­-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-­enter society.

This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third­-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one­-size-­fits-­all leniency to even violent offenders.

Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”

March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, March 23, 2015

The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case

Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:

14-280 MONTGOMERY, HENRY V. LOUISIANA

The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"

This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions.  If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.

Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception.  Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires.  The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.  

In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case.  But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).

If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club.  Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?".  Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”

Download NJLJ State retroactivity article

March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"

0323_dems-copy-620x363The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case.  Here are the basics: 

As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.

In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....

Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.

Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.

Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.

Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.

Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....

So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.

March 23, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack