Monday, April 24, 2017

Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas

The Supreme Court this morning is hearing oral argument in two capital cases.  Here are the basics and previews via SCOTUSblog:

McWilliams v. Dunn

Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Argument preview: What kind of help does the Constitution require for defendants in capital cases?

Davila v. Davis:

Issue: Issue: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Argument preview: Another Texas capital case raising a nested ineffective assistance of counsel issue 

Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions.  Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:

Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.

Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.

The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....

Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.

Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Interesting final phrase in Justice Breyer's latest pitch for SCOTUS to consider whether whether capital punishment is now unconstitutional

Via a dissent in Glossip v. Gross back in 2015, Justice Breyer explained at great length why he thought "it is now time to reopen the question" of "whether the death penalty violates the Constitution."  Since that time, Justice Breyer has made a fairly regular habit of dissenting or commenting on the denial of certiorari in capital cases with administrative problems along the lines he stressed in his Glossip dissent.  Today's SCOTUS order list includes another such statement by Justice Breyer in Smith v. Ryan, a case that involves a prisoner who has been on death row in Arizona for more than 40 years.  Here is a paragraph from the heart of Justice Breyer's statement that captures the essence of many of his capital statements since Glossip:

What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?  What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways?  I have previously explored these matters more systematically, coming to the conclusion that this Court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of “cruel and unusual punishment.”  Amdt. 8. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting).  The facts and circumstances of Smith’s case reinforce that conclusion.

Because statements by Justice Breyer like this one have become fairly common, I would not have blogged about this latest effort save for one little phrase in Justice Breyer's final sentence that struck me as new and unusual.  Here is the final sentence with my emphasis added on the phrase that caught my attention:

Smith’s confinement reinforces the need for this Court, or other courts, to consider in an appropriate case the underlying constitutional question.

I took a quick look at some other capital case statements from this Term by Justice Breyer and did not see this "other courts" phrase anywhere in his prior calls for the Supreme Court to take up the constitutionality of capital punishment.  I suspect that Justice Breyer has now come fully to realize, perhaps due in part to the new addition of Justice Gorsuch, that he is not going to be able to cajole his colleagues into taking up the constitutionality of capital punishment on their own and now the issue will likely get before SCOTUS only if a lower court takes up the issue in a bold, high-profile way.

I suspect I am reading way too much into three words in a little single Justice statement concerning the denial of cert.  Still, especially with talk of a new SCOTUS vacancy this summer, I do not think I am wrong to view the next few months and years as a potential turning point in the history of capital punishment in the US.  Justice Breyer has demonstrated his interest in playing a central role in defining the future of the death penalty, and this latest little statement perhaps reflects a realization that his window of opportunity to do so may be closing.

April 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, April 23, 2017

Six months after voting to speed executions, is California really getting any closer to carrying out death sentences?

The question in the title of this post is prompted by this new AP article headlined "California moves — slowly — toward resuming executions."  Here are excerpts:

California has long been what one expert calls a “symbolic death penalty state,” one of 12 that has capital punishment on the books but has not executed anyone in more than a decade.

Prodded by voters and lawsuits, the nation’s most populous state may now be easing back toward allowing executions, though observers are split on how quickly they will resume, if at all.

Corrections officials expect to meet a Wednesday deadline to submit revised lethal injection rules to state regulators, trying again with technical changes after the first attempt was rejected in December.

The California Supreme Court, meanwhile, is expected to rule by August on challenges to a ballot initiative narrowly approved by voters in November that would speed up executions by reducing the time allowed for appeals....

California could come close to resuming executions in the next year, said law professor Robert Weisberg, co-director of the Stanford Criminal Justice Center, though others say too many variables and challenges remain to make a prediction.... The state’s proposed lethal injection regulations are patterned after a single-drug process that already passed muster with the U.S. Supreme Court, Weisberg said.

Corrections officials submitted the regulations only after they were forced to act by a judge’s ruling on behalf of crime victims angered at the state’s three-year delay. But the regulations replacing California’s old three-drug method are likely to be approved at some point, Weisberg said.

Deborah Denno, a professor at Fordham University School of Law and an expert on lethal injections, was among those who said recent revisions to the state’s proposed regulations still don’t cure underlying problems that can lead to botched executions....

California voters have eased penalties for many crimes in recent years but have repeatedly rejected efforts to end the death penalty. They did so again in November, when 51 percent approved Proposition 66, designed to speed up death penalty cases. Fifty-three percent of voters defeated a competing measure that would have abolished the death penalty. The state Supreme Court quickly blocked Proposition 66 while it considers challenges.

Appellate lawyer Kirk Jenkins, who studies the court, expects the justices will reject the proposition’s five-year deadline for deciding death row appeals because it violates the separation of powers. Death penalty appeals average at least a decade from the time a condemned inmate is assigned a post-trial lawyer to a final decision by the state’s high court, he said, and the justices already have a backlog of about 300 capital cases. “There is no possible way that the court could meet the deadlines in Prop. 66” without putting aside virtually all other decisions, Jenkins said.

The initiative also makes it easier for corrections officials to adopt new lethal injection procedures. But even a complete rejection of Proposition 66 would not derail the executions of inmates whose appeals are exhausted, Weisberg said. Those executions could proceed once the state has an approved lethal injection process.

Experts said the delays may give opponents time to mount another campaign next year asking voters again if they want to abolish the death penalty. “In California, it’s become a symbolic death penalty state,” Denno said. “Whether that is going to change or not is unpredictable.”

April 23, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, April 20, 2017

Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime

As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:

Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg.  His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question.  Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.

McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.”  Teleguz will now serve life in prison without a chance of parole.

In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder.  “The jury acted on false information,” McAuliffe said.

In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family.  He called her relatives before his news conference Thursday afternoon.  “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”

McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence.  As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....

Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.

Investigators and Sipe’s family, however, are confident of Teleguz’s guilt.  “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week.  “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...

The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.

Prior related post:

April 20, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"'Clientless' Prosecutors"

The title of this post is the title of this intriguing new article authored by Russell Gold now available via SSRN. Here is the abstract:

Class counsel and prosecutors have a lot more in common than scholars realize.  Because these lawyers have to make decisions on their client’s behalf that clients would make in other contexts, they prompt substantial concerns about lawyers’ accountability to their clients.  Accordingly, there is a lot that each context can learn from the other about how to hold these lawyers accountable.  This article considers what criminal law can learn from class action law.  Its central insights are first that diffuse entities comprised largely of apathetic individuals cannot be expected to hold their lawyers accountable.  And second, to combat that accountability deficit, just as judges play an important role in holding class counsel accountable, so too should judges play an important role holding prosecutors accountable — both to their public-clients and their constitutional obligations.

In more concrete terms, this article contends that once a plea agreement has been reached, courts should substantively review the sentence that the parties recommend with an eye to the process that yielded the agreement, much as courts review class action settlements.  As with class members in class actions, courts should afford opportunities to be heard to those who wish to contest the deal to inform the court’s review.  If courts are hamstrung at sentencing by prosecutors’ charging decisions that they think inappropriate, judges should articulate their concerns and ask prosecutors to justify those decisions on the record in open court to facilitate accountability by the electorate and within prosecutor offices.

April 20, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, April 19, 2017

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

"Upside-Down Juries"

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

The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice.  But, by focusing on trial scarcity, scholars have managed to tell only part of the story.  The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do.  Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy.  In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same.  Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

It does not follow, however, that the criminal justice system should revert to equitable trial practices.  The modern trial is professional and legalistic for good reason. The rule of law commands that criminal convictions be products of precisely drawn criminal codes and formal processes.  Nevertheless, there are other procedural stages — arrest, charge, bail, bargain, and sentence — where equitable discretion is more appropriate. These are the stages at which criminal justice should concentrate lay efforts.

In this conference essay, I describe the historical and constitutional trends that have entrenched popular participation in all the wrong places.  And I propose redirecting jury practice from criminal trials to other adjudicatory sites.  Finally, I make the case that my reforms are consistent with (and perhaps even integral to) the legality principle, properly considered.

April 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS rules against federal defendant on appeal procedures in Manrique

The Supreme Court this morning handed down an opinion on federal appellate procedure this morning in Manrique v. US, No. 15-7250 (S. Ct. April 19, 2017) (available here).  Here is how the opinion for the Court by Justice Thomas gets started:

Sentencing courts are required to impose restitution as part of the sentence for specified crimes.  But the amount to be imposed is not always known at the time of sentencing.  When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant’s sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment.

We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later determined restitution amount.  We hold that it is not, at least where, as here, the Government objects to the defendant’s failure to file a notice of appeal following the amended judgment.

Justice Ginsburg, joined by Justice Sotomayor, dissents in a brief opinion that is focused on the case facts and asserts that "even assuming, arguendo, that separate appeal notices are ordinarily required, I would hold that Manrique is not barred from appealing the restitution order in the circumstances of this case."

April 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

SCOTUS rules 7-1 that due process precludes requiring defendant to prove innocence by clear and convincing evidence to recover assessments after invalidated conviction

The Supreme Court this morning handed down a notable due process decision in Nelson v. Colorado, No. 15–1256 (S. Ct. April 19, 2017) (available here). Here is how Justice Ginsburg's opinion for the Court gets started and concludes:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?  Our answer is yes.  Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence.  This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process....

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.

Justice Alito concurs separately, because in his view "Medina’s historical inquiry, not Mathews [the modern due process balancing test applied by the majority], provides the proper framework for use in these cases." Justice Alito's extended opinion provides a distinct account of the problem with Colorado's procedures.

Justice Thomas dissents in an opinion that is founded on the view that "petitioners have not demonstrated that defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the State pursuant to their convictions. "

April 19, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, April 18, 2017

"Cops and Pleas: Police Officers' Influence on Plea Bargaining"

The title of this post is the title of this intriguing new essay authored by Jonathan Abel appearing in the April issue of the Yale Law Journal. Here is its abstract:

Police officers play an important, though little-understood, role in plea bargaining.  This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining.  Using original interviews with criminal justice officials from around the country, this Essay explores the mechanisms of police involvement in plea negotiations and the implications of this involvement for both plea bargaining and policing.  Ultimately, police influence in the arena of plea bargaining — long thought the exclusive domain of prosecutors — calls into question basic assumptions about who controls the prosecution team.

April 18, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Courts Are Using AI to Sentence Criminals. That Must Stop Now."

The title of this post is the headline of this new WIRED commentary authored by Jason Tashea. Here are excerpts:

Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date.  These algorithmic outputs inform decisions about bail, sentencing, and parole.  Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.

Typically, government agencies do not write their own algorithms; they buy them from private businesses.  This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions.  Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting.  During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections.  The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool.  Loomis challenged his sentence, because he was not allowed to assess the algorithm.  Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency.

By keeping the algorithm hidden, Loomis leaves these tools unchecked.  This is a worrisome precedent as risk assessments evolve from algorithms that are possible to assess, like Compas, to opaque neural networks. Neural networks, a deep learning algorithm meant to act like the human brain, cannot be transparent because of their very nature. Rather than being explicitly programmed, a neural network creates connections on its own. This process is hidden and always changing, which runs the risk of limiting a judge’s ability to render a fully informed decision and defense counsel’s ability to zealously defend their clients....

[H]ow does a judge weigh the validity of a risk-assessment tool if she cannot understand its decision-making process? How could an appeals court know if the tool decided that socioeconomic factors, a constitutionally dubious input, determined a defendant’s risk to society?  Following the reasoning in Loomis, the court would have no choice but to abdicate a part of its responsibility to a hidden decision-making process.

Already, basic machine-learning techniques are being used in the justice system.  The not-far-off role of AI in our courts creates two potential paths for the criminal justice and legal communities: Either blindly allow the march of technology to go forward, or create a moratorium on the use of opaque AI in criminal justice risk assessment until there are processes and procedures in place that allow for a meaningful examination of these tools.  The legal community has never fully discussed the implications of algorithmic risk assessments.  Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.

To hit pause and create a preventative moratorium would allow courts time to create rules governing how AI risk assessments should be examined during trial.  It will give policy makers the window to create standards and a mechanism for oversight.  Finally, it will allow educational and advocacy organizations time to teach attorneys how to handle these novel tools in court.  These steps can reinforce the rule of law and protect individual rights.

As noted in this prior post, the Loomis case is right now pending before the US Supreme Court with a pending SCOTUS request for a brief from the Acting Solicitor General concerning a possible cert grant. And here are some prior related posts on Loomis case:

April 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, April 17, 2017

Lots of litigation leading to lots of uncertainty as Arkansas execution dates arrive

This CNN article, headlined "Arkansas inmate has last meal as courts decide fate," reports on some of the still-in-development litigation in the Natural State as it tries to get its machinery of death operational. Here are the highlights:

After the Arkansas Supreme Court stayed the execution of two inmates, the state's attorney general asked the US Supreme Court to overturn the ruling so the execution of one could proceed.

While Bruce Ward has one other stay in place, Don Davis -- who had his last meal -- could be the first executed over the next 10 days if Attorney General Leslie Rutledge prevails with the U.S. Supreme Court.

Amid the flurry, the 8th U.S. Circuit Court of Appeals overturned a Saturday ruling by a federal judge that temporarily halted all eight executions.

That U.S. District Court judge had ruled that the prisoners will likely succeed in demonstrating the state's proposed method of lethal injection is unconstitutional. But the appeals court said the use of the method of execution, which includes the drug, midazolam, did not create undue severe pain.

The executions were set for this month because Arkansas' supply of midazolam expires on May 1.

Gov. Asa Hutchinson issued a statement Monday evening that said, in part, "We have asked the US Supreme Court and hope to get a decision later tonight."

The attorney for Davis and Ward requested stays of execution until the US Supreme Court rules on an upcoming case concerning inmate access to independent mental health experts. The justices are set to hold oral arguments on April 24....

Late Monday, the Arkansas Supreme Court also overturned a temporary restraining order, issued by a state judge, that prevented Arkansas from using vecuronium bromide it had purchased from McKesson Medical-Surgical in executions. The company had argued the medication was not meant to be used in capital punishment.

The Arkansas Supreme Court had already blocked Ward's execution due to questions about his mental competency. As of Monday evening, that stay remained.

As officials awaited further court action, Davis had his "last meal" at the Cummins Unit, where the execution chamber is located. According to the Arkansas Department of Correction, Davis chose fried chicken, rolls, great northern beans, mashed potatoes and strawberry cake.

Davis' current execution warrant expires at 1 a.m. ET (midnight CT).

UPDATE: This New York Times article provides a more fulsome accounting of all of Monday's litigation that ended up with two scheduled executions being stay. And the lengthy article ends with a preview of what the rest of this week holds:

A spokesman for the state prison system, Solomon Graves, said the Arkansas authorities would be prepared to carry out the other executions that Mr. Hutchinson set.

“The Department of Correction’s attention now shifts to the executions that are scheduled for Thursday,” Mr. Graves said. “We are under the impression, and under the assumption, that those executions will be carried out as scheduled.”

They are scheduled for 7 p.m. on Thursday.

April 17, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, April 15, 2017

Utah judge under fire for calling former bishop "good man" in course of his rape sentencing

As reported in this local article, "complaints are mounting against a Utah County judge who earlier this week praised a former Mormon bishop before sending him to prison for sexually abusing two women." Here are the details:

Fourth District Judge Thomas Low on Wednesday became emotional as he handed down a prison sentence to Keith Robert Vallejo, whom a jury convicted of 10 counts of second-degree felony forcible sexual abuse and one of count of object rape, a first-degree felony.  "The court has no doubt that Mr. Vallejo is an extraordinary, good man. But great men," the judge said Wednesday before taking a long pause, "sometimes do bad things."

Two women testified at the trial that Vallejo had inappropriately touched them during separate stays at his Provo home in 2013 and 2014.

Julia Kirby — who was 19 when Vallejo, her brother-in-law, abused her — told The Tribune after the sentencing that she was shocked by the judge's words to her abuser. Now, she plans to file a judicial complaint against him. And she's not the only one.

Restore Our Humanity, a Utah civil rights group that has launched an initiative to help sexual assault victims, will also file a complaint against Low.  Director Mark Lawrence said Saturday that Low's comments showed "absolute disregard" for Kirby, who was sitting in the courtroom that day.  "He completely disregarded her," Lawrence said. "He did something that we see happening over and over from position in authority dealing with these kind of cases: Making the perpetrator into the victim, showing sympathy and praise for the perpetrator and trying to make him into the victim. It's completely inappropriate."

Lawrence said he expects to file the complaint after reviewing transcripts of Low's comments this next week. He said the goal of the complaint is not to disbar Low, but to have him sanctioned and perhaps go through training to better understand sexual assault victims.  "There are some people who would think that we're making a big issue out of this," Lawrence said. "But this isn't a simple misdemeanor or victimless crime.  Sexual assault cannot be taken lightly, and everyone must stand up for these victims and survivors."

Criticism of Low initially began in March, after The Tribune published a story about Low's decision to allow Vallejo to remain free on bail pending sentencing and return home to his wife and eight children — even after the jury handed down the guilty verdicts at the February trial.  Kirby said last month that she felt the decision indicated that Low did not believe that she and the other woman had been abused. Low reversed that decision during a March 30 hearing, and Vallejo had been at the Utah County jail until his Wednesday sentencing.

Jennifer Yim, the executive director of the Utah Judicial Performance Evaluation Commission, told the Associated Press that the commission has received roughly 40 emails, six voicemails and some Facebook messages about Low's handling of this case since late March.

Ryan McBride, the prosecutor on the case, said Low's comments were inappropriate and said it may have come in response to more than 50 character letters about Vallejo, most of them detailing the good things he has done.  The defendant's brother spoke at the hearing and compared Vallejo to Jesus in making the argument that he was wrongly convicted, McBride noted. "I don't think it's wrong to acknowledge the good things that someone has done in their lives," the prosecutor told The Associated Press. "But I think whenever you do that in a case like this, you've also got to say, 'But it doesn't excuse what you've done.' "

Low on Wednesday sentenced Vallejo to concurrent sentences of one-to-15 years in prison for each of the second-degree felonies, and a five-years-to-life term for the object rape charge.

April 15, 2017 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

"Sentencing Disparities"

The title of this post is the title of this new paper authored by Melissa Hamilton available via SSRN. Here is the abstract:

This Article is concerned with disparities in penalty outcomes.  More specifically, the study investigates upward departures in the federal guidelines-based sentencing system.  No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.

The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions.  Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).

The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects).  The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).

April 15, 2017 in Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, April 14, 2017

Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?

The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction.  But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:

From the Arkansas News, "Arkansas governor confident executions will go smoothly"

Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.

In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.

The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”

The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”

From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."

On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.

The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.

UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:

A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.

The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.

The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.

U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.

Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."

April 14, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Over-burdened New Orleans public defenders talk of challenges to 60 Minutes

60_MinutesAs previewed here, this Sunday night's broadcast of 60 Minutes will have a notable segment on the New Orleans justice system with notable commentary from attorneys who have work in the New Orleans Public Defenders Office.  Here is how the segment is previewed:

New Orleans public defenders tell Anderson Cooper that innocent people have gone to jail because they've lacked the resources and time to defend them properly

Past and current attorneys of the New Orleans Public Defenders Office tell Anderson Cooper they believe innocent clients have gone to jail because they lacked the time and resources to defend them properly. The system is so overburdened that in 2016 New Orleans Chief Public Defender Derwyn Bunton began ordering his staff to refuse to take on clients facing the most serious felonies. Cooper’s report on the New Orleans justice system will be broadcast on 60 Minutes Sunday, April 16 at 7 p.m. ET/PT.

All nine of the attorneys agreed when asked by Cooper if they believed an innocent client went to jail because they didn’t have enough time to spend on their case. When 52 attorneys are responsible for 20,000 criminal cases a year, as in New Orleans, they do their best says Bunton. But often, indigent defendants will not get the quality defense they are entitled to. “You can’t provide the kind of representation that the Constitution, our code of ethics and professional standards would have you provide,” says Bunton. Asked if it’s not better to have a busy lawyer than no lawyer, Bunton does not hesitate, “No. A lawyer poorly resourced can cause irreparable harm to a client.”

Cooper follows one case of a man arrested in New Orleans who sat in jail for more than a year before an attorney presented evidence to the court showing he did not even match the suspect’s description. He also speaks to the man’s original public defender who got so fed up with not having the time to provide quality defense, she quit.

At the time, Lindsay Samuel represented nearly a hundred clients facing a life in prison. She felt she was “Always coming up short. The first thousand clients you feel terrible. The second thousand clients, you feel awful,” she recalls. “Every day my clients are going away for a decade and I just move along to the next client,” says Samuel.

Bunton shows Cooper a warehouse full of the nearly half million cases handled by his office in the past decade. He says 90 to 95 percent of the defendants in those cases pled guilty, many because they lacked confidence in an overburdened public defender being able to provide them with an adequate defense. The justice system in New Orleans has become a criminal processing system says Bunton, “A conveyor belt that starts when you are arrested and then there’s hands that touch you on your way to prison,” he tells Cooper. “It’s not about figuring out...your innocence...and that’s what we are fighting to change,” says Bunton.

April 14, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Wednesday, April 12, 2017

Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?

Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:

Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.

Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."

"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."

Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.

The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.

In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”

“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”

Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."

They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.

The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."

They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.

April 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, April 11, 2017

AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"

As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement."  Here is more from the press release and the speech it references:

The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration.  Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....

[From the AG's speech:]

[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement.  As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.

Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:

  • The transportation or harboring of aliens. As you know too well, this is a booming business down here.  No more.  We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.

  • Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.

  • Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.

  • Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.

  • Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.

To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District.  It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era.  This is the Trump era.  The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

April 11, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Monday, April 10, 2017

AG Sessions opting not to renew National Commission on Forensic Science

As reported in this extended Washington Post piece, headlined "Sessions orders Justice Dept. to end forensic science commission, suspend review policy," the new Attorney General is taking a new approach to old debates over forensic science. Though the decision here is not quite a sentencing story, it provides another example of how the new head of DOJ is taking a much different approach to serving justice than did his immediate predecessors.  I recommend the Post piece in full for those seeking full context here, and here is how the piece starts:

Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.

A path to meet needs of overburdened crime labs will be set by a yet-to-be named senior forensic adviser and an internal department crime task force, Sessions’s statement said.

The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.

April 10, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, April 09, 2017

Reviewing the "tough-and-tougher" sentencing perspectives of those now leading the Justice Department

The Washington Post has this extended new article reviewing a lot of the old tough-on-crime comments by AG Jeff Sessions and his new right-hand man, Steve Cook.  The article is headlined "How Jeff Sessions wants to bring back the war on drugs," and here is how it gets started (with one important phrase emphasized at the end):

When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.

But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population.  And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel. “The federal criminal justice system simply is not broken. In fact, it’s working exactly as designed,” Cook said at a criminal justice panel at The Washington Post last year.

The Obama administration largely ignored Cook, who was then president of the National Association of Assistant U.S. Attorneys.  But he won’t be overlooked anymore. Attorney General Jeff Sessions has brought Cook into his inner circle at the Justice Department, appointing him to be one of his top lieutenants to help undo the criminal justice policies of Obama and former attorney general Eric H. Holder Jr.  As Sessions has traveled to different cities to preach his tough-on-crime philosophy, Cook has been at his side.

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed. Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.  “Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.  “They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

But Cook, whose views are supported by other federal prosecutors, sees himself as a dedicated assistant U.S. attorney who for years has tried to protect neighborhoods ravaged by crime.  He has called FAMM and organizations like it “anti-law enforcement groups.”  

The records of Cook and Sessions show that while others have grown eager in recent years to rework the criminal justice system, they have repeatedly fought to keep its toughest edges, including winning a battle in Congress last year to defeat a reform bill.  “If hard-line means that my focus is on protecting communities from violent felons and drug traffickers, then I’m guilty,” Cook said in a recent interview with The Post.  “I don’t think that’s hard-line. I think that’s exactly what the American people expect of their Department of Justice.”

The phrase I have stressed above is the phrase that ultimately matters most for the foreseeable future of the federal criminal justice system.  Though the Attorney General and others senior DOJ officials can and will define and shape the basic policies for federal charging and sentencing, it is local federal prosecutors around the nation who really determine how these policies get implemented and who, collectively, have the greatest impact on prosecutorial and punishment practices.  And I surmise that a whole lot of federal prosecutors — not all, but many and perhaps most — embrace the "tough-on-crime" philosophy that AG Sessions espouses more than the "smart-on-crime" mantra that former AG Holder eventually espoused. 

April 9, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, April 08, 2017

"Cruel Techniques, Unusual Secrets"

The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol.  An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment.  Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique.  This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases.  To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries.  This Article develops such an approach.

In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques.  It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework.  Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols.  Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.

April 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 07, 2017

Now that we have Justice Neil Gorsuch, what will be his first notable sentencing vote or opinion?

As reported here by the Washington Post, this morning, the "U.S. Senate confirmed Neil M. Gorsuch to serve on the U.S. Supreme Court, capping more than a year of bitter partisan bickering over the ideological balance of the nation’s highest court." Here is more about what comes next:

Gorsuch is expected to be sworn-in in the coming days, allowing him to join the high court for the final weeks of its term, which ends in June. It’s likely he will want to be sworn-in quickly — even if a ceremonial event is held later — so that he can get to work.  The court is scheduled to meet Thursday for a private session to decide whether to accept or reject a long list of cases that would be heard next term. And the last round of oral arguments for this term is scheduled to begin in just 10 days, on April 17.

Justice Samuel A. Alito Jr. is the most recent justice to have been confirmed during a Supreme Court term. He was sworn-in the same day as his confirmation, and a ceremonial event with President George W. Bush was held the next day.

I do not believe there are any sentencing cases on the SCOTUS docket for its last round of arguments later this month, but there are a few notable criminal procedures case including a couple involving ineffective assistance of counsel issues.  It will be interesting to see how Justice Gorsuch approaches oral argument and decision-making in these early cases.

April 7, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

"Who are the Punishers?"

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

The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them.  This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments.  The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials.  Under the framework presented in this Article, the class of potential punishers should be much wider.  Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.

April 7, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, April 06, 2017

Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child

A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:

Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby.  Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent.  Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence.  As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”

Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September.  He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.

The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”  Notice something strange there?  Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.

Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.”  The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional.  Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt.  Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”

That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.”  Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.”  Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute.  The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”

April 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol

A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:

Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart.  R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813).  The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.).  The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.”  Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower.  We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte.  For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.

Here is how the dissenting opinion by Judge Kethledge gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed.  See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her.  After each murder Otte went out partying.  See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.  See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).

Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted).  The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip.  Yet the district court thought we should likely invalidate that procedure, and today the majority agrees.  I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.

A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.

April 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, April 05, 2017

En banc Ninth Circuit concludes application of guidelines should generally be reviewed for abuse of discretion

The Ninth Circuit today issues a relatively short en banc ruling that should be of particular interest to hard-core appellate review sentencing aficionados. The start of the opinion in US v. Gasca-Ruiz, No. 14-50342 (9th Cir. April 5, 2017) (available here), covers the basics:

We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case. We conclude that as a general rule such decisions should be reviewed for abuse of discretion.

If you still hanker for more, here is a paragraph from the heart of the court's analysis:

District courts make far more guideline-application decisions of all sorts, see Koon v. United States, 518 U.S. 81, 98 (1996), and thus are likely to be more familiar with the nuances that go into applying Guidelines provisions across the board. Guideline-application decisions, as we have defined them, almost always “depen[d] heavily upon an understanding of the significance of case-specific details,” Buford, 532 U.S. at 65, because once the district court has identified the correct legal standard and properly found the relevant historical facts, all that remains is the fact-bound judgment as to whether a specific set of facts satisfies the governing legal standard.  In the Sentencing Guidelines context in particular, that is a judgment district courts are uniquely qualified to make.  Each guideline-application decision is ultimately geared toward assessing whether the defendant before the court should be viewed as more or less culpable than other offenders in a given class.  In light of their experience sentencing defendants on a day-in-and-day-out basis, district courts possess an institutional advantage over appellate courts in making such culpability assessments. See Koon, 518 U.S. at 98.

April 5, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

AG Sessions provides update (with timelines) about the work of DOJ's Task Force on Crime Reduction and Public Safety

As reported in this short press release, "Attorney General Jeff Sessions today issued [a] memo to 94 U.S. Attorney’s Offices and Department of Justice component heads providing an update on the Department’s Task Force on Crime Reduction and Public Safety." As the press release further explains, in this update, "the Attorney General announced the creation of Task Force subcommittees that will focus on a variety of issues including developing violent crime reduction strategies, supporting prevention and re-entry efforts, updating charging and sentencing policies, reviewing asset forfeiture guidance, reducing illegal immigration and human trafficking, combatting hate crimes, and evaluating marijuana enforcement policy."

The full three-page AG memo is available at this link, and it does not cover much of significant substance.  But the memo does state that the AG "directed the Task Force to hold a National Summit on Crime Reduction and Public Safety within 120 days," and it also states that the AG has asked for Task Force subcommittees to provide initial recommendations no later than July 27th.  Thus I expect we will see some hot talk about changes to DOJ charging and sentencing policies (and perhaps also marijuana policies) as the weather heats up in the coming months. 

April 5, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Alabama poised to ban judicial override of jury life recommendations in capital cases

As reported in this local article, the "law in Alabama is about to change so that juries will have the final say on whether to impose the death penalty or life in prison in capital murder cases." Here is more on this notable capital development:

The House of Representatives this afternoon passed a bill that would end the authority of judges to override jury recommendations in capital cases. Alabama is the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.

The bill, by Sen. Dick Brewbaker, R-Montgomery, passed the House on a vote of 78-19 and is now headed to Gov. Robert Bentley, who said he plans to sign it into law after it undergoes a standard legal review.

Rep. Chris England, who had a similar bill in the House, substituted Brewbaker's bill for his on the House floor today, allowing it to get final passage....

According to the Equal Justice Initiative. Alabama judges have overridden jury recommendations 112 times. In 101 of those cases, the judges gave a death sentence. "Having judicial override almost undermines the constitutional right to trial by a jury of your peers," England said.

England's bill, as introduced, would also have required the consent of all 12 jurors to give a death sentence. Current law requires at least 10 jurors. Brewbaker's bill leaves the threshold to impose the death penalty at 10 jurors.

England said there was not enough support to pass the bill with the requirement for a unanimous jury to impose the death penalty. He said ending judicial override was the main objective this year but he might propose the unanimous jury requirement again in the future. He said he still thinks the change is needed. "Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death?" England said....

England said the fact that Alabama had become the last state to allow judicial override helped build support for the bill this year. England also said there was some question about whether Alabama's death penalty law could be found unconstitutional in the future.

Ebony Howard, associate legal director for the Southern Poverty Law Center, issued a statement applauding the bill's passage. "Alabama should do everything it can to ensure that an innocent person is never executed," Howard said. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury's vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases."

The Supreme Court's decision in Hurst last year striking down, as violative of the Sixth Amendment, Florida's quirky approach to jury involvement in death sentencing surely paved the way for this notable change in Alabama procedure. Notably, in Florida, Hurst was ultimately interpreted to also preclude death sentencing based on only a 10-juror recommendation. Apparently legislators in Alabama feel more confident that capital cases can roll that way in the Yellowhammer State.

April 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."  According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?"   Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive.  Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims.  Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here.  But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

April 4, 2017 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?

The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:

If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.

Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.

Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest.  In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.

Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade.  They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.

The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.

The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....

Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....

UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.

Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.

Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.

Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.

Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.

Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.

I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly.  In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.

April 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 03, 2017

"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"

The title of this post is the title of this notable article just published in Justice Quarterly authored by Christi Metcalfe and Ted Chiricos.  Here is its abstract:

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.  Still, few studies have considered the influence of defendant race and race/sex within the plea process.  The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.

The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.  Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

April 3, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Supreme Court unanimously rules for defendant and district court sentencing discretion in Dean

I am intrigued and surprised and ultimately pleased that a unanimous Supreme Court this morning emphasized the significance of federal district court sentencing discretion through its ruling in Dean v. United States, No. 15-9260 (April 3, 2017) (available here). The Chief Justice authored a relatively brief opinion for the Court in Dean that was obviously convincing enough to get even the most pro-prosecution Justices comfortable with ruling against the prosecution.  Here are some key parts of the opinion, starting with the first paragraph that signals where the rest is headed:

Congress has made it a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime. 18 U. S. C. §924(c). That separate firearm offense carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. The question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)....

The §3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. Under §3582 a court, “in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a).”...

As a general matter, the foregoing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts....

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough.  But no such intent finds expression in the language of §924(c).  That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence.  Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.

April 3, 2017 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Latest SCOTUS order list includes one complicated capital case grant

The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:

2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial

As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison."   Here is more:

Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.

She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.

Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.

After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.

Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.

The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Civilizing Criminal Settlements"

The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:

Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways.  The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.  This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor.  By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution.  Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously.  Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.

This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.  It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties.  In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation.  Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations.  The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.

April 1, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, March 31, 2017

Perspectives on some changing prosecutorial perspectives

This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:

In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.

They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.

In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”

But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....

The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.

But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”

Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”

March 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 28, 2017

Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application

The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant.  Because I am on the road, I will not be able to provide context for this ruling until later today.  Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.

UPDATE:  Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:

Bobby James Moore fatally shot a store clerk during a botched robbery.  He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution.  A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.”  The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004).  See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015).  The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.

We vacate the CCA’s judgment.  As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7).  That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.  Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source.  Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1).  Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

March 28, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, March 27, 2017

Dynamic SCOTUS week for criminal law fans

I am on the road and thus going to be on-line and blogging only intermittently over the next few days. Perhaps for that reason, I am anticipating that the Supreme Court is going to be up to some interesting criminal work, given that this morning there will be an order list and Tuesday and Wednesday opinions may be released. In addition, a majority of cases up for oral argument this week involve criminal law issues.  Via SCOTUSblog postings, here are links/previews for the criminal law cases the Justices will be hearing on Tuesday and Wednesday:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining

 

Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

 

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

March 27, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, March 26, 2017

Notable perspectives on state and direction of modern criminal justice reform efforts

James Forman has this lengthy new commentary in the New York Times under the headlined "Justice Springs Eternal." I recommend the full piece to anyone and everyone seeking to take stock and reflect upon the current moment in the modern criminal justice reform movement.  Here are some extended excerpts:

After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.

In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978.  By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001.  Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.

And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)

Such dangerous, ill-informed pronouncements naturally induce weariness and dread.  Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever....

The most unexpected victories came in local races for prosecutor.  For decades, district attorney candidates competed to prove they were tougher on crime than their opponents.  That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla....

These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates.  While mass incarceration is a national crisis, it was built locally.  Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.

Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill).  But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards.  During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.

Now, the reverse could also prove to be true.  If multiple individuals across multiple systems were to become less punitive, the prison population would fall.  This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.

The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level?  The answer lies with a new breed of activism that has emerged in response to mass incarceration.  Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not....

[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services.  Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense.  Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.

President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”

But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda.  We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win.  And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.

This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors.  I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.

I still believe this is true for most prosecutors’ offices.  But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind.  Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.

Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention.  But their agenda faces a rising countermovement across the country.  If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.

March 26, 2017 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, March 22, 2017

Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender

As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:

New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.

In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.

Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.

The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:

Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender.  In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose.  The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes.  The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole.  A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device.  The Parole Board upheld that determination and denied J.I. a hearing.  The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society.  Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders.  We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer.  After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout.  The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion.  The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Tuesday, March 21, 2017

Ruling 6-2, SCOTUS holds in Manuel that Fourth Amendment claim can be brought contesting pretrial confinement

The one criminal ruling handed down by the Supreme Court this morning, Manuel v. City of Joliet, No. 14–9496 (S. Ct. March 21, 2017) (available here), has a majority opinion authored by Justice Kagan than gets started this way:

Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime.  The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement.  Our answer follows from settled precedent.  The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975).  And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause.  See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment).  Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).

Justice Alito wrote the chief dissent (which is joined by Justice Thomas), and it gets started this way:

I agree with the Court’s holding up to a point: The protection provided by the Fourth Amendment continues to apply after “the start of legal process,” ante, at 1, if legal process is understood to mean the issuance of an arrest warrant or what is called a “first appearance” under Illinois law and an “initial appearance” under federal law.  Ill. Comp. Stat., ch. 725, §§5/109–1(a), (e) (West Supp. 2015); Fed. Rule Crim. Proc. 5.  But if the Court means more — specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts — the Court stretches the concept of a seizure much too far.

What is perhaps most remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment.  I would decide that question and hold that the Fourth Amendment cannot house any such claim.  If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.

March 21, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 20, 2017

"Capital Jurors in an Era of Death Penalty Decline"

The title of this post is the title of this notable paper authored by Brandon Garrett, Daniel Krauss and Nicholas Scurich.  Here is the abstract:

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s.  Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty.  In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.

We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California.  What we found was surprising.  Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty.  Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors.  Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility.

A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death.  Rare punishments may seem more arbitrary, even to those who find them morally acceptable.  We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.

March 20, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender

I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here).  This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:

Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).

In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.

The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July.  Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill.  If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.

Here is how the majority opinion in this case begins:

The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.

And here is how the chief dissenting opinion starts:

I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.

The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.

I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.

As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law.  Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.

March 20, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, March 19, 2017

What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?

I am not really expecting any tough sentencing questions to be directed toward Judge Neil Gorsuch at his coming Supreme Court confirmation hearings, but that will not stop me from imagining what such questions might sound like or from encouraging readers to share their ideas on such questions.  And though I might readily spin out a long list of such questions here, I will be content for now to rattle off just two that come to mind on a Sunday afternoon during a brief break from bracket obsession:

A few prior related posts on Judge Gorsuch:

March 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"

The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:

In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication.  Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.

Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact.  It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.

In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution.  This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution.  Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.

March 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state

The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts: 

Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.  But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994.  Even if a judge's sentence includes parole, it still won't happen.  Yet since then, hundreds of defendants have been sentenced to life with chance of parole.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing.  He found out when he received a letter last December from The Republic.  He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.  The sentence has not existed since the law was changed in 1993.  But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it.  He took the issue to the Arizona Supreme Court, which oversees all state courts.

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.  “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence.  “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.  “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic.  Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death.  Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

The two sentences sound very similar.  And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.  But they are substantially different.  Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner.  It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison.  And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.   In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019.  But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

March 19, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Friday, March 17, 2017

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Tuesday, March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Florida law now officially requires jury unanimity for death verdicts

Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing.  This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:

It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2.  The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.

The Legislature passed the new rules (SB 280) overwhelmingly last week.  The death penalty fix is the first major law passed and signed in the 2017 session.  Florida joins most other states in requiring unanimous juries....  "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.

Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty.  Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.

In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts.  Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury.  Some of those inmates have already been granted a new sentencing hearing.

Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said.  "With a unanimous jury, you need all 12," he said Friday.  "You can have one activist and one vote and prevent the death penalty from kicking in."

March 14, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)