Tuesday, January 13, 2015

SCOTUS unanimously rejects defense effort to limit reach of sentence enhancement in federal robbery statute

The US Supreme Court this morning handed down an impressively short unanimous opinion in Whitfield v. US, No. 13-9026 (S. Ct. Jan. 13, 2015) (available here), which swiftly rejects a bank robber's attempt to limit the reach of a provision of the statute with which he was convicted.  Here is the start of the opinion by Justice Scalia for the Court, as well as a few passages that my most interest sentencing fans:

Federal law establishes enhanced penalties for anyone who “forces any person to accompany him” in the course of committing or fleeing from a bank robbery. 18 U. S. C. §2113(e).  We consider whether this provision applies when a bank robber forces someone to move with him over a short distance....

In an attempt to support his position that “accompany” should be read to mean “accompany over a substantial distance,” Whitfield observes that a forced-accompaniment conviction carries severe penalties: a mandatory minimum sentence of 10 years, and a maximum sentence of life imprisonment.  In 1934, a forced-accompaniment conviction could even be punished with death.  Act of May 18, 1934, ch. 304, §3, 48 Stat. 783. The severity of these sentences, Whitfield says, militates against interpreting subsection (e) to capture forced accompaniment occurring over a small distance.

But it does not seem to us that the danger of a forced accompaniment varies with the distance traversed.  Consider, for example, a hostage-taker’s movement of one of his victims a short distance to a window, where she would be exposed to police fire; or his use of the victim as a human shield as he approaches the door.  And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain.  The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that.  It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.

January 13, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Thursday, January 08, 2015

Is California prepared to revoke parole for any sex offender with an iffy lie-detector test?

The question in the title of this post is prompted by this new AP story with the headline "California making sex offenders take lie-detector tests." Here are the basics:

For the first time, California is making paroled sex offenders take periodic lie-detector tests in response to several high-profile cases involving parolees who raped and killed.

State officials said this week that the stepped-up effort to prevent new sex crimes will help them better gauge which offenders are most dangerous and in need of increased supervision. All sex offender parolees also are required to participate in specially-designed treatment programs. Previously, only high-risk offenders had to undergo treatment.

California is not the first state to adopt the new policies. But with more than 6,000 sex offenders on parole, officials say it is by far the largest.

I have never closely followed the debates of the reliability of lie detector tests, but it appears that California has decided that they are reliable enough to become a mandatory part of parole requirements for sex offenders.   That said, I wonder if these lie-detector test will be considered reliable enough (by parole officials? by courts?) to alone provide a sufficient basis for revoking a sex offender's parole if he sometimes fails to "pass the test with flying colors"?

January 8, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

"Sentencing Rules and Standards: How We Decide Criminal Punishment"

The title of this post is the title of this notable new article on SSRN authored by Jacob Schuman. Here is the abstract:

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment.  Debates over sentence determinacy have focused on three questions: Who should decide punishment? What makes punishment fair?  And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards.  Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decisionmaking, instead sentencing based on the § 3553(a) standard.  I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments.

January 8, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 07, 2015

Intriguing Sixth Circuit procedural sentencing reversal of upward variance

A helpful reader alerted me to a thoughtful Sixth Circuit panel ruling in US v. Coppenger, No. 13-3863 (6th Cir. Jan. 7, 2015) (available here), which covers effectively a (little?) procedural problem at sentencing.  Here is how it starts:

Defendant Jack Coppenger, Jr., pled guilty to conspiracy to commit mortgage fraud. Pursuant to the parties’ plea agreement, the government agreed not to recommend a sentence in excess of the applicable advisory Guidelines range, which was 78 to 97 months’ imprisonment.  Nonetheless, the district court used information in presentence reports prepared for Coppenger’s co-conspirators to vary upward and sentenced Coppenger to 120 months in prison.  Coppenger contends the sentence is substantively and procedurally unreasonable.  He asserts two claims of error: the district court impermissibly treated coconspirators as victims; and the district court failed to provide him with notice and opportunity to respond to its intent to vary upward based on information contained in co-conspirators’ presentence reports.  Because the district court abused its discretion when it failed to provide Coppenger meaningful opportunity to respond to information used to vary upward, we vacate and remand for resentencing.  

January 7, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Victim rights' back-story at heart of new Cassell-Dershowitz blood feud

Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz.  Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started.  The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention.  Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.

The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls.  Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute.  Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.

Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal.  They want a federal court to invalidate the agreement, a position fiercely contested by the government.  The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes.  Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”

The case exposes tensions between the due-process rights of the accused and the rights of victims.  Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”

U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law.  And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.

In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies.  The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”

In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.”  And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”

The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”

January 7, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 06, 2015

Notable discussions of children as mass incarceration’s "collateral damage"

Child-in-Court-boy-text1The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces."  Here is an excerpt:

A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....

A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.

Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.

Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....

Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....

John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”

I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders.  And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:

Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”

Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.

Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.

Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.

In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.

January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Monday, January 05, 2015

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Previewing (and predicting) federal sentencing prospects for former Virginia Gov McDonnell

The Washington Post has this lengthy article, headlined "What to expect at former Virginia governor Robert McDonnell’s sentencing," providing an effective preview of a high-profile white-collar sentencing taking place in federal court tomorrow. Here are highlights:

As a federal judge on Tuesday sets the punishment for former Virginia governor Robert F. McDonnell, he will consider legal issues as well as sweeping personal questions.  U.S. District Judge James R. Spencer will look first to guidelines that call for McDonnell to receive as much as 12 years and seven months for trading the influence of his office to a smooth-talking businessman in exchange for sweetheart loans, lavish vacations and high-end merchandise.

But the judge is not bound by those recommendations.  And his ultimate decision rests, in part, on intangible considerations: How serious was McDonnell’s public corruption?  What penalty might deter others in the former governor’s shoes?  What weight should be given to the good the former governor has done?...

rosecutors want McDonnell to spend at least 10 years and a month in prison.  The former governor’s attorneys believe a sentence of community service — and no time behind bars — would be sufficient.

Both sides will make their best pitches to the judge in person beginning at 10 a.m. McDonnell may offer a personal plea, as may some of his supporters.  Spencer has been given more than 440 letters that friends, family members and others wrote on the governor’s behalf, urging leniency and extolling the virtues of the onetime Republican rising star.  Spencer also has reviewed filings from prosecutors, who have accused McDonnell of feeling no remorse and still seeking to blame others....

The starting point for determining the former governor’s punishment is this: The U.S. probation office — the federal agency tasked with calculating a range of appropriate penalties according to the federal sentencing guidelines — has recommended that McDonnell face between 10 years and a month to 12 years and seven months in prison. There is no parole in the federal system, and if McDonnell were to be incarcerated, he would be able to reduce his time behind bars with good behavior by only 54 days a year, at most.

Spencer is not bound by the probation office’s recommendation — it is merely a technical calculation of how the office believes federal sentencing guidelines should be applied in the case — but experts say he typically heeds its advice....

After Spencer determines the guideline range, he will weigh entirely different factors as he fashions what he considers an appropriate punishment.  Among those that prosecutors and defense attorneys highlighted in McDonnell’s case: the nature and circumstances of his offenses, McDonnell’s personal history and characteristics, and the need to deter others from ending up in similar straits....

A former prosecutor and Judge Advocate General’s Corps officer, Spencer was appointed to the court by President Ronald Reagan in 1986.  Known as a no-nonsense and efficient jurist, he took senior status on the bench last year, meaning he is now semi-retired.  Jacob Frenkel, a former federal prosecutor who now does white collar criminal defense work, said Spencer probably will not impose a decade-long sentence, but defense attorneys’ bid for only probation is something of a “Hail Mary.”

I share the view that it is unlikely McDonnell will get either probation as he wishes or the 10 years in prison sought by the feds. As a betting man, I would put the over-under line at around three years. The nature of the crime and the defendant leads me to think the sentencing judges will be likely to impose a substantial prion term, but still something less (perhaps much less) than half a decade.

Prior related posts:

UPDATE: I just discovered that Randall Eliason at his Sidebars Legal Blog has this lengthy post about the McDonnell sentencing which provides much more detailed review of the interesting guideline calculation issues that are in dispute in the case.  

January 5, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Gearing up (finally) for start of capital trial of Boston Marathon bomber

TsarnaevsketchNearly two years after the vile (alleged?) crimes and challenging capture of Dzhokhar Tsarnaev, a very high-profile federal capital trial gets started today.  This lengthy Boston Globe story, headlined "Marathon bombing trial to start today with jury selection: Long 1st phase for Marathon bombing trial; testimony may begin next month," provides a helpful preview. Here are excerpts:

Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.

The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer....

For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.

The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.... The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.

The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.

Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.

Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.

Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.

But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.

Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.

The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.

The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements. In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.

Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.

Some prior related posts:

January 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, January 02, 2015

"Policing Public Order Without the Criminal Law"

The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:

Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point.  Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process.  These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.

Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions.  Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.

In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot.  Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means.  To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Thursday, January 01, 2015

Chief Justice promises fully electronic SCOTUS by 2016 in his 2014 year-end report

FuturamanAs reported here by Lyle Denniston at SCOTUSbog, the US Supreme Court "is moving toward a full and free-access system for all documents filed in cases before the Justices — a system expected to be working 'as soon as 2016,' Chief Justice John G. Roberts, Jr., revealed in his annual year-end report on the federal judiciary."  Here is a bit more about this exciting news:

The Court already receives some of its filings electronically, but the present arrangements do not include “all filings at the Court,” in the language the Chief Justice used to describe what will be available by 2016.  That, he said, will include “petitions and responses to petitions, merits briefs, and all other types of motions and applications.”  Public access to all of these materials will be available on the Court’s website without cost, he stressed.

The Chief Justice’s annual report was dominated by a theme of technological advances and their impact on the operation of the courts.  He acknowledged that, because of special concerns about security and other operating limitations for the courts, the judiciary has not been moving as rapidly as some other sectors of society in modernizing its information systems.  “The courts will often choose to be late to the harvest of American ingenuity,” he commented.

When the new system is in place and operating, according to Roberts, filings will still be made in paper form, but there will be a requirement for electronic versions when filed by any party that is represented by an attorney.  Those, like prison inmates, who are too poor to afford lawyers and filing fees and thus are allowed to file papers making their own pleas without cost, will not be required to make electronic submissions.  The Court staff will scan those so-called “pauper” filings and upload them to the Court’s system so that those, too, will be available for public access....

The year-end report also discussed the progress of the lower federal courts in adopting and improving the electronic case-filing system that has been in place since 2001.  More than one billion documents can now be retrieved from that system, the Chief Justice noted.  A “next generation” improvement in that system is now being developed within the judiciary, he added.

The full year-end report from the Chief Justice of the United States can be accessed at this link. It starts with this amusing paragraph:

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics!  The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another.  Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

Kudos to the Supreme Court for being committed to having all its materials on-line for free access to all and to the Chief Justice for effectively explaining the work being done to make this commitment a reality.

January 1, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, December 31, 2014

"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"

The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes.  The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.

The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others.  The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

December 31, 2014 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 29, 2014

Split Ninth Circuit panel reverses Arizona death sentence over sharp dissent

The Ninth Circuit today issued a notable reversal of an Arizona death sentence by finding that the defendant's attorney was ineffective at sentencing even though the Arizona courts found to the contrary. The ruling in Mann v. Ryan, 09-99017 (9th Cir. Dec. 29, 2014) (available here), produced a notable dissent by Judge Kozinski starting this way:

Once more unto the breach.  Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.”  Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).  In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review.  The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court.  One way or the other, Mann will be executed, if he doesn’t die of old age first.  But only after he — and the families of the two people he killed 25 years ago — endure what may be decades of further uncertainty.  Where’s the justice in that?  I respectfully dissent from Part III of the majority’s opinion.

December 29, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Sunday, December 28, 2014

Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate

McdonnellThis lengthy local article from Virginia, headlined "U.S. seeks McDonnell sentence of 10 to 12 years," details the competing arguments being set forth in a high-profile federal white-collar sentencing slated for next month. Here are excerpts from the piece:

Prosecutors are asking that former Gov. Bob McDonnell, convicted of 11 corruption charges in September, be imprisoned for at least 10 years and one month to as much as 12 years and seven months when sentenced Jan. 6 by U.S. District Judge James R. Spencer.

In sentencing memorandums filed Tuesday, the U.S. Attorney’s Office asked for a term within the federal sentencing guideline range determined by the probation office, while McDonnell’s lawyers asked for 6,000 hours of community service instead of prison time and argued the guideline range should be 33 to 41 months.

“After serving as a prosecutor and attorney general, this defendant corrupted an office that few bribery defendants achieve, and then falsely testified and shifted blame for his actions before the jury that convicted him,” wrote Dana J. Boente, the U.S. attorney for the Eastern District of Virginia. McDonnell, the government wrote, “stands before this court as only the 12th governor in the United States — and the first governor of Virginia — to be convicted of a public corruption offense.”

McDonnell and his wife, Maureen, were convicted in a six-week trial in which the marriage and the former first lady were portrayed as troubled.  Maureen McDonnell was convicted of nine charges, one later thrown out, and will be sentenced Feb. 20.  Bob McDonnell testified on his own behalf, but his wife did not.  The McDonnells were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the then-CEO of Star Scientific, in exchange for promoting a new dietary supplement product. Williams, a key government witness, was granted immunity....

In its 31-page sentencing memorandum, the government urged Spencer to adopt the findings in the presentencing report from the probation office and reject McDonnell’s objections.  Prosecutors argued that McDonnell abused his power and violated his duty to the people of Virginia.

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to elected officials existed and that he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’ ” prosecutors wrote. “But he was not convicted of accepting gifts; he was convicted of accepting bribes. And bribery has always been a violation of state (as well as federal) law,” they added.  The government said the presentencing report correctly factored in obstruction of justice based on what it termed McDonnell’s lies from the witness stand....

McDonnell’s 51-page sentencing position, also filed Tuesday, took a very different view of the case.  It said: “Bob McDonnell has devoted his life to public service, family, and faith. This offense is a total aberration in what was by all accounts a successful and honorable career.”

McDonnell argued the appropriate guideline range should be 33 to 41 months. “A sentence of imprisonment of any length, however, much less one of 10 years or more, would be a severely disproportionate punishment,” his lawyers contend.  “Instead, a variant sentence of probation with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote location served over three years is ‘sufficient, but not greater than necessary,’ to provide a just punishment,” they wrote.

“An outcome in which Mr. McDonnell serves any time in prison ... while Mr. Williams suffers no criminal justice consequences at all would neither promote respect for the law nor provide a just resolution to this case,” McDonnell’s lawyers argued.

Much of McDonnell’s sentencing position is taken up with his biography, accomplishments, and service in the military and as a state legislator, Virginia attorney general and governor.  Seven appendixes, including hundreds of letters of support, were filed along with the document.

The memorandum notes the outline of the scheme for which he was convicted.  “Mr. McDonnell’s actual conduct, however, differs in critical ways from that of others who have been convicted under the same federal bribery laws,” McDonnell’s lawyers argued.  “Mr. McDonnell did not demand or receive cash payments from Mr. Williams.  He did not take briefcases of money or hide stacks of $100 bills in his freezer,” they wrote.  “Rather, the quid that the indictment charges that Mr. McDonnell or his family members received were gifts — a wedding gift to Mr. McDonnell’s daughter and several rounds of golf at Mr. Williams’ country club — as well as three loans at commercial rates that the McDonnells paid back with interest.”

While McDonnell’s decision to accept the items showed poor judgment, Virginia state ethics laws at the time permitted officials to accept unlimited gifts of that nature, McDonnell’s lawyers argued.  “Numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy hangers-on.”...

The defense contends that McDonnell’s trial and conviction already act as powerful deterrents to criminal conduct by others, making imprisonment unnecessary.  “No elected official would want to live through the last year of Mr. McDonnell’s life,” his lawyers write.  McDonnell and his family “have already suffered tremendously,” the lawyers write. “His once-promising political career is dead,” and “his marriage has fallen apart.”

Defense lawyers wrote that McDonnell’s “sterling reputation in the community has been irreparably damaged,” he has lost his ability to practice law, he is likely to lose his state pension, “and he will have to sell his family home.”  The former governor’s lawyers also contend prison is unnecessary to protect the public because there is no risk McDonnell will commit any further crimes. “He is 60 years old and out of politics.”

Relatedly, this Washington Post article reports on some of the notable letters written to the sentencing judge in support McDonnell. The piece is headlined "Former Virginia governor Bob McDonnell’s downfall is wife’s fault, daughter says," and it provides this link to some notable character letters.

Prior related posts:

December 28, 2014 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities.  The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

December 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Shouldn't every parole board (and sentencing commission) include a former inmate?

The question in the title of this post is promoted by this interesting and lengthy New York Times article headlined "Ex­-Inmate on Connecticut Parole Board Brings an Insider’s View to Hearings." Here are exceprts:

There was the usual grab bag of inmates preparing to be heard here, from the career offender with a heroin problem to the plotter of a jewel heist to the glum men with girlfriend trouble. All were former convicts who had landed back in prison on parole violations, and this was their chance to explain their conduct to the Connecticut Board of Pardons and Paroles.

One by one, they were led to rooms at their prisons to participate via teleconference in hearings that dispensed assembly­line justice. Soon, they were offering reasons for their mistakes that ran from the fantastic (“Yes, I had a knife but only because I was cooking”) to the familiar (“My girlfriend made me do it”).

One cog in the machine was different, though: The two-­member panel weighing each inmate’s fate included a man who was himself a former inmate. The expertise that the former prisoner, Kenneth F. Ireland, brought to the task — intimate knowledge of the state’s criminal justice system — came in a way no one could envy: In 1989, a day after he turned 20, Mr. Ireland was convicted of raping and murdering Barbara Pelkey, a Wallingford factory worker.

The crime occurred when he was 16. He received a 50­-year sentence and spent nearly half his life, from the age of 18 until he was 39, in prison. Despite his assertions that he was innocent, friends stopped believing in him, and family drifted away. Then, in 2009, DNA testing performed at the insistence of the Connecticut Innocence Project exonerated him and identified the real culprit.

Rather than spurn further dealings with the authorities, Mr. Ireland, 45, allowed his name to be suggested for a seat on the parole board this year. “I’ve been on the inside, and I understand the programs, the issues confronting the inmates,” he said.

Nominated in October by Gov. Dannel P. Malloy, a Democrat, Mr. Ireland is now serving provisionally, along with four other nominees, until state legislators vote on the appointments next year.

Timothy S. Fisher, dean of the University of Connecticut School of Law, got to know Mr. Ireland through work he does on behalf of the wrongfully convicted. Mr. Fisher championed the idea of adding Mr. Ireland to the board in a letter to Nancy Wyman, the lieutenant governor, in March.

“He has a very cleareyed understanding of the people in prison,” Mr. Fisher said. “How so many of them say ‘I didn’t do it,’ and yet he’s no fool. He’s been around them and he knows there’s injustice, but he also knows that there are people who will try to pull a fast one. I think he will be a more discerning judge of character on this board than almost anyone.”...

The idea of having Mr. Ireland on the board appears to have originated with Vivien Blackford, a member of the Connecticut Sentencing Commission, according to people who supported the appointment. “Having been in prison, he brings so much to the board because he understands the experience, the perspectives and the reasons that people do what they do,” Ms. Blackford said.

Mr. Ireland quit a steady job as a bookkeeper to accept the appointment, which comes with a salary — though that does not seem to be what motivates him

December 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack