Monday, July 07, 2014

"Do Residency Bans Drive Sex Offenders Underground?"

The very important question in the title of this post is the headline of this discussion (with lots of links) by Steven Yoder at The Crime Report. Here is an excerpt:

California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions — prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.

But a court decision in Colorado last year could mark a shift in momentum. In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry.   Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds — a law that effectively made 99 percent of its homes and rentals off limits to offenders. Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.

Ryals sued, and last August a federal court concluded that the city’s ban went too far. The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision....

In California, scores of cities are rolling back their restrictions after an Orange County court ruled last April in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks.  Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park.  In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority.  The appeals court ruling was upheld by the state’s highest court.

Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules.  Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.

Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.

And this year, California’s Supreme Court could make an even bigger ruling — whether to toss the state’s 2,000-foot law itself.  A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed.  The judge cited an increase in homelessness among registrants as a key reason.  Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.

At least two other states — Rhode Island and New York — have been sued since 2012 over their own residency laws.

One finding in the Ryals’ case in Colorado case could resonate in other states. The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board concluding that residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track....

Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.

Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010.  And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate.  Bellucci argues that there’s more to come in other states.  The “pendulum of punishment,” she claims, is starting to swing the other way.

“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.”

July 7, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

Sunday, July 06, 2014

Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing

This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week.  Here are excerpts:

Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.

The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.

There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....

Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin’s trial, the government did not present evidence to show that those who bribed Nagin failed to perform....

Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it’s clear that Nagin’s criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....

Depending on how the judge rules on those questions, Nagin’s final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin’s lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.

Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin’s lack of a criminal history and an argument that the crimes of which he was convicted constituted “aberrant” behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor’s unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin’s criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....

Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a “downward variance” on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.

July 6, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, July 01, 2014

Significant (but unpublished!?!) Sixth Circuit ruling finding Lafler prejudice despite defendant's claims of innocence

The Sixth Circuit just released an interesting and important ruling in Sawaf v. US, No. 13-5620 (6th Cir. June 30, 2014) (available here), which grants a white-collar defendant relief based on ineffective assistance of counsel at plea-bargaining based in part on the Supreme Court's recent Sixth Amendment jurisprudence in this area. Here are passages from the Sawaf opinion, which in part highlight why I think this ruling is significant (despite being "unpublished"):

In 2001, Dr. Sawaf, a medical doctor specializing in the practice of urology, was charged with multiple counts of unlawful drug distribution for prescribing narcotic pain medications without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). It is undisputed that, prior to trial, the Government offered Sawaf a plea bargain that would have resulted in a significantly reduced prison sentence of 41 months instead of the 235-293 month term of imprisonment he would likely receive under the applicable U.S. Sentencing Guidelines if convicted at trial. Upon the advice of his attorney, Sawaf rejected the Government’s plea offer and proceeded to trial, unsuccessfully, where he was convicted and ultimately received a prison sentence of 240 months....

After a careful review of the evidence, the district court found that Sawaf’s attorney had indeed failed to advise him about the applicable sentencing guidelines at any time prior to his trial, resulting in “objectively unreasonable and constitutionally ineffective” assistance of counsel at the pre-trial stage of the proceedings....

Although the district court acknowledged the general presumption of prejudice “created by the significant disparity between the plea offered and the ultimate sentence” that Sawaf received, it nonetheless concluded that Sawaf was not entitled to relief because he had failed to show that he would have accepted the Government’s plea offer but-for his counsel’s ineffectiveness.... [T]he district court determined that Sawaf’s claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf’s continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice."...

Given Sawaf’s unrelenting insistence as to his innocence, the district court was understandably reluctant to credit Sawaf’s self-serving claim at the evidentiary hearing that he would have pleaded guilty under different circumstances. As the district court emphasized in its opinion, Sawaf’s continued declarations of innocence at the evidentiary hearing undermined the plausibility of his assertion that he would nonetheless have pleaded guilty if he had been properly informed as to the possible consequences of proceeding to trial. On the other hand, to conclude that this information would have had no impact on Sawaf’s decision-making process would undercut the very reasoning for the Supreme Court’s recognition that the Sixth Amendment right to counsel during the plea-bargaining process includes the right to be informed by counsel as to the range of penalties under the applicable guidelines. Lafler, 132 S. Ct. at 1384.... After all, the existence of that right is necessarily rooted, at least in part, in our general understanding that the discrepancy between the punishment resulting from a plea agreement and that which would result from a trial conviction is an important factor that the defendant is entitled to consider in his decision-making process.

More importantly, however, we have consistently declined to conclude that a defendant’s “repeated declarations of innocence” alone preclude the possibility that the defendant would have entered a guilty plea if he had been aware of the consequences of proceeding to trial....  In light of these cases, we are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence.  Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

I am eager to praise the Sixth Circuit for this notable application of Lafler and its unwillingness to sting the defendant here yet again for maintaining his innocence. But I am also a bit annoyed that this seemingly significant ruling is being left unpublished. Fortunately, in this digital age, even unpublished opinions can be found and heralded, and I am grateful to a helpful reader who made sure I did not miss this one.

July 1, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, June 30, 2014

Ninth Circuit sorts out federal case of CJA payment delayed, then CJA representation denied

It is often said that justice delayed is justice denied. An interesting ruling today from the Ninth Circuit in US V. Tillman, No. 13-10131 (9th Cir. June 30, 2014) (available here), work through what happens when Criminal Justice Act payment is delayed and that leads to CJA representation being denied. Here is the start of the panel opinion in Tillman, which ends up being more about the actions and standing of Tillman's CJA-appointed lawyer rather than the criminal defendant:

This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant’s constitutional right to have counsel appointed, counsel’s reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing vouchers for payment.  In this unusual interlocutory appeal, John R. Grele and his former client, Markette Tillman, appeal an order removing Grele as counsel, sanctioning him, and referring him to the California State bar for disciplinary proceedings.  Under Flanagan v. United States, 465 U.S. 259 (1984), we lack jurisdiction over Tillman’s claim that counsel was improperly removed. The removal order is nonfinal and not immediately appealable; Tillman has the opportunity to raise this issue on direct appeal, if there is one.  Grele’s petition as to the sanctions order presents a different question, however, because the improper sanctions order not only had an immediate impact on Grele but continues to affect his professional reputation as learned counsel in capital proceedings.  We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.

June 30, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 29, 2014

Two new examinations of white-collar prosecutions and punishment schemes

Lucian Dervan has recently posted two notable new articles on white-collar crime and punishment on SSRN.  Here are links to both articles and their abstracts:

The Quest for Finality: Five Stories of White Collar Criminal Prosecution

Abstract: In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications.  Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.

Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases.  Therefore, the article examines five stories of white collar criminal prosecution.  The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.

First, the stories demonstrate that we must be careful not to value finality over accuracy.  As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency.  Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one.  Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price.  Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting.  While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.

White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence

AbstractOvercriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others.  The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders.  While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes.  In fact, they typically represent some of the most commonly charged offenses in the federal system.

Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.

June 29, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, June 27, 2014

A 22-year-old driving his parents' RV from Colorado to Wisconsin with $50K, pot and a pit-bull gets pulled over in Nebraska...

The title of this post might make for the start of a great joke about modern America circa 2014.  But, in fact, it is the factual basics of a fascinating little ruling today by the Eighth Circuit in US v. Nelson, No. 13-1902 (8th Cir. 2014) (available here).

In an effort not to "give away the joke," I am not going to say anything more about this case others that to suggest that those concerned about excessive police powers will be pleasantly surprised by the ending to this story provided by the Eighth Circuit panel's opinion.

June 27, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 25, 2014

Notable SCOTUS consensus that Fourth Amendment requires a warrant for cell phone searches

The Supreme Court handed down this morning its last big criminal justice decisions of this Term with a near unanimous ruling in Riley v. California and US v. Wurie. The decision for the Court (available here) was authored by the Chief Justice, and here is how it begins and some of its essential parts:

These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested....

[A] balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.

But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones....

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search....

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime.  Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.  Privacy comes at a cost....

Modern cell phones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630.  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.  Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Regular readers will not be surprised to hear that there was one Justice who felt compelled to write a separate concurrence to express some misgivings about the majority's forceful pro-defendant ruling here. Usefully, both the Chief's opinion and the one concurring opinion likely provides lots of interesting discussion of Fourth Amendment interests and applications that should keep commentators buzzing and blogging (and tweeting) about modern privacy law for some time.

June 25, 2014 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, June 24, 2014

"Forget Sentencing Equality: Moving from the 'Cracked' Cocaine Debate Toward Particular Purpose Sentencing"

The title of this post is the title of this interesting paper authored by Jelani Jefferson Exum now available via SSRN. Here is the abstract:

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal.  This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment.

Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular offense.  Particular Purpose Sentencing also requires that, once sentences are matched to a specific purpose, the outcomes of those sentences be studied to ensure that they are fulfilling their particular sentencing purpose.

This Article analyzes the legislative and judicial limits of basing sentencing reform on racial equality goals, and explores how implementing Particular Purpose Sentencing has the potential to result in more effective and racially equal consequences.  Though this Article introduces Particular Purpose Sentencing using the drug sentencing context, this new sentencing theory can be applied to achieve fairer, more successful sentencing for all offenses.

June 24, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

How SCOTUS Halliburton ruling could have white-collar sentencing echoes

HallExperienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me an intriguing set of insights about how yesterday's Supreme Court ruling yesterday in Halliburton v. Erica P. John Fund (available here) could possibly impact some white-collar sentencing arguments. Mark kindly allowed me to reprint his analysis here:

White collar defense practitioners should be aware of today’s ruling in in Halliburton v. Erica P. John Fund. While a civil class action case, Halliburton may have some helpful applicability at sentencing. 

The Court in Halliburton has expanded the application of Basic Inc. v. Levinson, 485 U. S. 224 (1988) regarding WHEN plaintiffs can prove damages in “fraud on the market cases” from a defendant’s misrepresentation.  In Basic the Court, held that a class of plaintiffs could  prove reliance of a defendant’s misrepresentation by “invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misrepresentations.”  The presumption effectively allows plaintiffs to side-step proof of actual reliance on any misrepresentations for purposes of establishing damages.  Without class certification, however, individual plaintiffs cannot invoke the presumption thereby making proof of damages far more difficult.  The Court held that, contrary to the Fifth Circuit, Defendant/Petitioner Halliburton could introduce evidence that any misrepresentation lacked “price impact” to prevent certification of the class.

Halliburton could be helpful in securities fraud sentencing cases inasmuch as the government usually lumps all the victims together to determine a collective “loss” for sentencing purposes without introducing any evidence that any particular victim (save for those few who may have testified at any trial) relied on any misrepresentations of the defendant.  Such a collectivization of victim losses, therefore, implicitly invokes the Basic efficient market presumption allowing the government to side-step having to prove reliance by any particular victim.  But just as the Commission’s (relatively new and untested) modified recissory method for calculating loss in securities fraud case is subject to rebuttal, so too is the Basic presumption.  In light of today’s ruling in Halliburton, counsel should consider providing the Court evidence that any misrepresentation by the defendant lacked “price impact” on the victims sufficient to overcome the de facto Basic presumption with respect to collective victim losses.  In this way, the Government would be required to provide evidence how individual victims relied on any misrepresentations. 

To be sure, unlike in sophisticated civil class actions that require precision, since determining loss at sentencing need only be a reasonable estimate, only those victims that would materially affect the loss amount should not be granted the Basic presumption; in those cases the Government would be required to prove reliance.  But this is as it should be inasmuch as years if not decades of your client’s life could be at stake.

June 24, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Friday, June 20, 2014

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, June 18, 2014

Should feds agree to moving capital trial of Boston Marathon bomber?

As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize.  Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues.  At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....

Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations.  "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.

He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass.  Tsarnaev's trial is scheduled to begin Nov. 3.

I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.

Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.

June 18, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Monday, June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

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

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, June 12, 2014

Florida Supreme Court upholds state law to speed up capital appeals

As reported in this local article, headlined "‘Timely justice’ death-penalty law upheld," the Florida Supreme Court had a notable state capital appeals ruling today. Here are the basics:

The Florida Supreme Court on Thursday upheld the constitutionality of a 2013 law that legislative supporters said would reduce delays in carrying out the death penalty. Justices, in a unanimous decision, rejected arguments that the so-called “Timely Justice Act” would be an unconstitutional infringement on the court system’s authority and separation of powers, and violate due-process and equal-protection rights.

In a concurring opinion, Justice Barbara Pariente emphasized that the law would not affect the Supreme Court’s “solemn responsibility” to block executions if necessary to ensure that defendants’ rights are protected.

“[This] court is still constitutionally entrusted with the duty to issue a stay of execution if there is a meritorious post-conviction claim pending or, if at the time the warrant is signed, the defendant brings a successive post-conviction challenge that casts doubt on his or her guilt, the integrity of the judicial process, or the validity of the death sentence imposed. . . . In my view, that remains the essential fail-safe mechanism this court may utilize when necessary to ensure that the ultimate punishment of the death penalty is inflicted in a manner that fully comports with the constitution,” wrote Pariente, who was joined in the concurring opinion by justices Jorge Labarga and James E.C. Perry.

With some convicted murderers on Death Row for 30 years or longer, lawmakers in 2013 said the changes would help carry out justice more quickly. After Gov. Rick Scott signed the bill, for example, House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach, posted a Twitter message that said, “Several on death row need to start picking out their last meals.”

But the details of the law, which touched on issues such as death warrants, the clemency process and legal representation for Death Row inmates, have proved to be far more complex than the legislative debate. Scott also pushed back against characterizations that the law would “fast-track” death-penalty cases through the court system.

Attorneys for dozens of Death Row inmates filed the constitutional challenge last year, with the case focusing on four disputed parts of the law, according to Thursday’s opinion, which was written by Justice R. Fred Lewis. A key issue focused on a requirement that the Supreme Court clerk notify the governor when Death Row inmates have exhausted initial state and federal appeals. The law orders the governor to sign death warrants for such inmates within 30 days and to direct the warden to schedule their executions within 180 days — but only after the executive clemency process has been completed.

The full ruling can be accessed at this link.

June 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Fascinating account of post-Miller realities for juve killers with new chance for eventual freedom

At Slate, Beth Schwartzapfel has this terrific new essay about what might be called "life after Miller" for juvenile murderers who now have a possible chance for release from a life prison sentence as a result of the Supreme Court's modern Eighth Amendment jurisprudence. The piece merits a full read, and it carries the headline, "'Where Do You Think That Rage Came From?' To get parole, people sentenced to life as juveniles must reckon with their pasts." Here is how the piece gets started:

Last week, the Massachusetts Parole Board announced that Frederick Christian might go home.  He would be one of the first people to be released based on the Supreme Court’s 2012 ruling, in Miller v. Alabama, finding mandatory life sentences for juveniles unconstitutional.

Christian was 17 when he was involved in a drug robbery that ended with the shooting deaths of two men.  Now he is 37.  In prison, he got his GED, enrolled in violence prevention programs, and converted to Islam.  The five-times-a-day prayers, he said, “taught me discipline.”  He has maintained a steady job cleaning the prison, gone regularly to Narcotics Anonymous and Alcoholics Anonymous meetings, and helped to grow vegetables for the homeless.

Across the country, some 2,500 people are serving life without parole sentences for crimes they committed as juveniles.  Some have already served 30 years or more.  Yet it’s likely few of them will get out.  Before he can be paroled, Christian still has to complete a behavior modification program and live for a year in a minimum security prison. And his hearing is one of only a handful like it around the country since Miller.  The Supreme Court said that the young people’s capacity to mature and change entitle them to a second chance.  But lower courts, legislatures, and parole boards have more incentive to maintain the status quo than to show mercy — to follow the letter of Miller but not its spirit.

That’s because letting more prisoners like Christian go free requires a return to an idea that the country largely abandoned a generation ago: that criminals can be rehabilitated, and there is a limit to just retribution.  As costs rise for the growing prison population, legislators from every corner of the political map are now calling for a softening of sentencing laws.  But legislation about the future is one thing.  Giving a second chance to people who have already been sentenced for doing terrible things is another.

June 11, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Eleventh Circuit holds USSC report criticizing CP guideline does not make within-guideline CP sentences unreasonable

Though not especially surprising or really ground-breaking, the Evelenth Circuit's ruling today in US v. Cubero, No. 12-16337 (11th Cir. June 11, 2014) (available here), rejecting an attack on a lengthy within-guideline child porn sentence still seems noteworthy and blog-worthy.

As detailed in the lengthy Cubero opinion, the defendant not only made much of mitigating personal factors, but also stressed in support of a below guideline sentence the US Sentencing Commission's recent report to Congress detailing problems with its own guidelines and a letter from a DOJ official criticizing the current child porn guidelines.  But the district judge opted to impose a within-guideline sentence of 12.5 years, and the Eleventh Circuit panel saw this decision as a permissible exercise of the district court's sentencing discretion.

 Here is the heart of some of the panel's discussion of the limited impact and import of the USSC's criticism of its own guidelines (with cites mostly removed):

[The Sentencing Commission's Child Porn to Congress] (1) does not alter the district court’s duties to calculate the advisory guidelines range and to impose a sentence after considering the § 3553(a) factors, (2) does not limit the district court’s discretion to determine what weight to give to each § 3553(a) factor, and (3) does not require the district court to vary from the § 2G2.2-based guidelines range. See 18 U.S.C. § 3553(a)–(b).  The district court was empowered with discretion to consider Cubero’s downward-variance arguments, many of which are now captured by and reflected in the 2013 [USSC CP] report, but the court was not compelled to vary downward....

Contrary to Cubero’s arguments, the 2013 report does not heighten the district court’s statutory duty to state the reasons for imposing a particular sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S. Supreme Court’s or this Circuit’s precedent regarding the district court’s obligations under 18 U.S.C. § 3553(c); namely, that a district court’s decision to apply the guidelines to a particular case does “not necessarily require lengthy explanation.”  Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).

Based on current reasonableness jurisprudence, this Eleventh Circuit ruling is not out of the mainstream. If circuits were inclined, as I think they should be, to conduct reasonableness review in a more substantive and rigorous manner, then perhaps defendants might have a chance to prevail with claims that the 2013 USSC report assailing the existing child porn guidelines renders within-guideline CP sentences inherently suspect. But because reasonableness review has tended to be so very deferential, even when all agree that certain guidelines are so very flawed, I was not too surprised by this ruling.

June 11, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack