Sunday, December 07, 2014

Former basketball star taking (wild?) shot at fighting loss calculation in federal fraud sentencing

TateThis notable article from Connecticut reports that a notable fraud defendant is going to be representing himself as he agrues against how loss is being calculated and used against him in his upcoming federal sentencing.  Here are some of the interesting details:

Ever since being convicted on four felony counts in a real estate scheme, former University of Connecticut basketball star Tate George has been complaining about his legal representation.  He criticized his trial attorney, saying he didn't listen to requests for calling witnesses and other strategies.

After dropping his first attorney, George briefly switched to another, who is also out of the picture.  Now George has received permission from a federal judge to represent himself at his sentencing.

A first-round NBA draft pick, George has more basketball experience than legal experience.  He is best known for hitting "The Shot" at the Meadowlands arena in New Jersey in the final second to defeat Clemson in the NCAA playoffs in 1990, one of the most stunning victories in UConn basketball history.

Before his request was granted this week, federal prosecutors warned George in court papers about "the dangers and perils of self-representation."  They quoted the saying that "he who represents himself has a fool for a client."  Prosecutors told George, "There are many complex rules in court, and that most non-lawyers, including yourself, cannot know all of these rules."

But George, 46, has gone his own way before.  After expressing dissatisfaction with his trial attorney, George began sending letters directly from his prison cell to the federal judge instead of sending them through his attorney.  In at least five letters to U.S. District Court Judge Mary L. Cooper in Trenton, George proclaimed his innocence.

"I understand that my life has no value to all those who have gone about defaming my name, but I beg to differ and will continue to fight to prove my innocence," George wrote to the judge.  "Again, for the record, even though the government refuses to want to hear or admit to the truth above their lies to make me look guilty, there are no losses to report at this time, which means there is no crime or victims.  PERIOD! AS I HAVE SAID, BUT NO ONE SEEMS TO BE LISTENING, THERE ARE MONIES OWED YES, BUT NOT LOSSED!"

As part of his legal strategy, George is saying that the $250,000 investment by former UConn basketball star and NBA player Charlie Villanueva that was never repaid should not be counted as a financial loss.  Since he has promised to repay Villaneuva, George says there is no victim and no loss....  

George has said he was upset that his attorney, David E. Schafer, a federal public defender, said that investors in his case had lost $833,000 when George maintained that the actual loss was zero.  Federal prosecutors say the investors lost more than $2.5 million. At one point, a prosecutor described George as a "baby Madoff," referring to the massive Ponzi scheme operated by now-imprisoned New York City financier Bernie Madoff in which investors lost billions of dollars in a long-running scheme.

George was convicted in September 2013 and could face as many as nine years in prison when he is sentenced. Although he was convicted more than a year ago, his sentencing has been postponed multiple times.

December 7, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 05, 2014

SCOTUS takes up new capital procedures case from Louisiana

As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure.  Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:

In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death.  In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.

Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds.  Brumfield was charged with killing the officer and wounding the store manager.

In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty.  The petition contended that he was entitled to a separate hearing on that question.  His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.

UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."

December 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

District Judge pushes federal prosecutors to back off extreme trial penalty sentence

As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:

Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.

Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday.  But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.

Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty.  "He won't look with pride on what you're doing here today," Sullivan said....

In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks.  Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.

In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.

They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.

After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.

December 5, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, December 04, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

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

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Nevada completes detailed accounting of costs of death penalty cases

As reported in this local article, headlined "High cost of death penalty could affect its future in Nevada," the Silver State's audits have recently completed a detailed report on how much taxpayer gold is typically spent in capital cases. Here are the details:

Nevada’s criminal justice system spends nearly twice as much handling death penalty cases compared with murder cases where capital punishment isn’t sought, according to a report released Tuesday by state auditors.

The state-mandated study, which surveyed data from 27 state and local agencies, gives ammunition to death penalty opponents who have failed to defeat public support for capital punishment using moral objections. It is, by far, Nevada’s most comprehensive study on the controversial practice and will serve as a law makers' guide for years to come....

Auditors assembled the 105-page report by sampling data from 28 cases, calculating costs associated with legal counsel — both defense and prosecution — as well as for money spent on court proceedings and incarceration.

Here are three highlights from the document's release:

From a suspect’s arrest through his or her final days behind bars, officials spend at least $1.3 million on murder cases where convicts are sentenced to death but not executed — that’s $532,000 more compared with murder cases where capital punishment wasn't sought. Litigation costs, including the trial and appeal phase, averaged about three times more for death penalty versus non-death penalty cases. And expenses are similar for all death penalty cases, regardless of whether a sentence is given or not.

Among all prison inmates convicted of murder, costs are highest for people on death row. There were 83 people sentenced to death in Nevada as of late last year. Prosecutors could have potentially saved an estimated $44 million by never pursuing corporal punishment in those cases....

Nevada's per capita death penalty rate ranks fourth in the country and tops Texas and California, according to the nonprofit Death Penalty Information Center. But the state's death chamber is seldom used, and only a dozen people have been executed since the U.S. Supreme Court reinstated the capital punishment in 1976. Of those, only one died against his will. The last execution in Nevada happened more than eight years ago.

It’s likely the study underestimated the cost of death penalty cases because of underreporting from government agencies....

The study’s findings fall in line with previous research examining the financial burden of capital murder cases — a study released this year by the Kansas Judicial Council found that defending a death penalty case costs as much as four times more than other murder cases.

Critics of the practice hope Nevada’s study will bolster efforts to erode support for capital punishment. “A lot of people who favor the death penalty think it’s cheaper,” said Las Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's meeting from Las Vegas. “Once people understand and they’re informed, maybe things will change.”

The full 100+ page Nevada legislative audit document released this week, which carries the exciting title "Fiscal Costs of the Death Penalty," can be accessed at this link.

December 4, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, December 03, 2014

Fifth Circuit issues stay keepingTexas from executing mentally ill condemned murderer

As reported in this CNN piece, the Fifth Circuit today "stayed the execution of Texas death row inmate Scott Panetti, who was scheduled to be put to death at 6 p.m. Wednesday." Here is more:

Panetti's case has sparked debate for years over whether the state can execute someone who is severely mentally ill.  During his trial for the 1992 slayings of his mother- and father-in-law, Panetti represented himself — dressed in a purple cowboy outfit — and called Jesus, John F. Kennedy and the Pope to the stand.  The now-56-year-old was convicted of shooting them to death at close range, in front of his wife and daughter.

Panetti has suffered from schizophrenia for 30 years, his lawyers say, and he was hospitalized for mental illness numerous times before the murders.  Though Panetti received initial evaluations of his mental health, his state of mind has deteriorated, his lawyer Kathryn Kase said.  She noted in a letter to Texas Gov. Rick Perry that Panetti hasn't received a mental evaluation in seven years.  Kase asked that Perry grant a 30-day stay to the scheduled execution so that that an evaluation can be done to determine if he understands his punishment....

"If he's executed there should be a sense of outrage," said Ron Honberg, legal director for the National Alliance on Mental Illness.  "There's no question he's mentally ill.  If this happens, the message would be — 'we just don't care.'

"To execute him flies in the face of even supporters of the death penalty who say that it should be carried out with inmates who are the worst of the worst," Honberg continued.  "It would be much more compassionate and practical to spend money treating inmates with mental illness rather than execute this man."

The Texas Board of Pardons and Parole voted 7-0 to deny clemency in Panetti's case.  There is still an appeal before the U.S. Supreme Court, in addition to the appeal the U.S. Fifth Circuit Court of Appeals granted Wednesday.

December 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Praise for Texas justice embracing "Right on Crime" from across the pond

This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:

Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was.  Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do.  When they don't we punish them, but then we welcome them back and expect good behaviour again.  It's not naive, it's just clear.

For years that straightforward moral outlook translated into a tough criminal justice system.  As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket.  Texas, for instance, has half the population of the UK but twice its number of prisoners.

Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.

What Madden found was that too many low-level offenders were spending too long in prison, and not reforming.  On the contrary, they were getting worse inside and not getting the help they needed on release.  The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.  

But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab.   Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices.  Here, they believe, moral clarity and generosity are what's needed.

Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release.  Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.

The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen.  Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....

Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community.  This is the magic sauce of Right on Crime.

Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons.  I visited one by the Trinity River in Dallas, now ready for sale and redevelopment.  They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.

This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours.  It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.

December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, December 02, 2014

"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements"

The title of this post is the title of this new article authored by Kevin Bennardo and published in the online complement to the Washington and Lee Law Review. (The Erwin case referenced in the title is a recent Third Circuit ruling discussed in this blog post titled "Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver.")  Here is the abstract of this new article:

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty.  A defendant’s breach of one should not affect the Government’s obligation to perform under the other.  All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance.  This intertwining undermines sentencing policy as set forth in the federal sentencing statute.  Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

December 2, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield

The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context.  Here is how the preview starts and ends: 

One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum.  [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another.  [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States  — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....

At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence.  Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case.  On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die.  And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.

UPDATE: Via SCOTUSblog, I see that the transcript in Whitfield v. United States is now avaiable here

December 2, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, December 01, 2014

Justices struggling in Elonis argument with free speech and Facebook threats

There are now lots of old and new media sources reporting on today's Supreme Court oral argument in Elonis v. United States, the case considering the reach and application of a federal law prohibiting making threats via the Internet.  The folks at SCOTUSblog have two terrific review posts here and here, and How Appealing collects lots and lots of links to other coverage here and here.

All these media reports suggest that the Justices were struggling in various ways to figure out how best to balance free speech concerns and legitimate interests in punishing "true threats" made on-line.  And folks can read up on these struggles in full via the transcript in Elonis v. United States which is available at this link.

December 1, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Making the case (again) for fixing the federal clemency process

Over the holiday weekend, Professors Rachel Barkow and Mark Osler renewed their call for reform of the federal clemency process through this Washington Post opinion piece.  Here are excerpts from the start and end of the piece:

In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.

Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot....

What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties....

It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.

With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.

Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.

Just a few of many recent and older posts concerning federal clemency practices:

December 1, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Justices issue cert statements expressing concerns about procedural issues in criminal appeals

Today's order list from the Supreme Court, in addition to including a few notable denials of cert in criminal cases as noted by Lyle Denniston in this new SCOTUSblog post, concluded with two notable statements by a few Justices explaining why they voted to deny certiorari review in a couple of criminal cases even though they were troubled by procedural issues arising in efforts by defendants to raise various appellate issues.

This statement in Joseph v. United States should be of special interest to federal practitioners.  In it, Justices Kennedy and Sotomayor indicated they voted to grant certiorari, while Justice Kagan (joined by Justices Ginsburg and Breyer) explained how the Eleventh Circuit's application of rules about raising new claims in reply brief suggested that  "criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between the Eleventh Circuit and every other court of appeals."   Justice Kagan then, not too subtly, suggested that she was holding on granting cert in order to give the Eleventh Circuit a chance in the first instance to " clean up intra-circuit divisions" before SCOTUS took up the matter.  

This statement in Redd v. Chappell should be of special interest to capital punishment followers, especially in California.  In it, Justice Sotomayor (joined by Justice Breyer) laments that nearly two decades "after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings — counsel to which he is entitled as a matter of state law." Justice Sotomayor explains she is did not vote to grant cert in part because "the State represents that state habeas counsel will be appointed for petitioner in due course.” When counsel is appointed is obviously real important to this petitioner; even more important to lots of others is whether this statement is something of a signal concerning the on-going federal court litigation in Jones v. Chappell over the constitutional problems posed by seemingly arbitrary delays in appellate review for condemned California killer.

December 1, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, November 30, 2014

Previewing SCOTUS argument in Facebook threat case, Elonis v. United States

Images (2)To kick off December, the Supreme Court will hear oral argument in Elonis v. United States to consider application of the federal law prohibiting making threats using the Internet.  Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Social media as a crime scene," and here are excerpts:

There is a way for the Court to decide the case of Elonis v. United States without sorting out just how far First Amendment protection extends to private expression on the Internet. In agreeing to hear the case, the Court added a question about the meaning of the federal law at issue.  If it narrows the reach of that law, it may not need to say anything directly about the First Amendment, although it probably would reduce the law’s scope if it felt that was necessary to avoid having to rule on the constitutional question.

In this case, a thirty-one-year-old man, Anthony Douglas Elonis, who lives in the small Pennsylvania community of Lower Saucon Township, was convicted for postings on Facebook four years ago that prosecutors treated as actual threats of violence. The jury agreed, leading to a guilty verdict and a forty-four-month prison sentence. His messaging came after his wife had left him and he was fired from his job at an amusement park because of one of his postings....

His conviction came under a federal law that makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”

The Supreme Court, in fact, has already made at least partly clear — in decisions that go back to 1969 — that the First Amendment does not permit the government to punish for all threats made in communications in the media or in the public square. It has confined prosecution to “true threats,” and has stressed that the law against threatening someone does not apply at all to “political hyperbole” or to “vehement, caustic, or unpleasantly sharp attacks” that cannot be interpreted as “true threats.”

And, in a decision in 2003, the Court attempted to say just what a “true threat” is, legally speaking. It did so in interpreting another federal law that made it a crime to burn a cross with the intent of intimidating someone. That law said any cross-burning, by the act itself, would be proof of an intent to intimidate. A plurality of the Court said that the act alone was not sufficient. “‘True threats,'” that opinion said, “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

In [Elonis], the Supreme Court has the task of clarifying what a person “means to communicate” when speaking in terms of violence on the Internet, and also what constitutes “an intent” to commit the crime of making an illegal threat.

Basically, this case presents the Court with two choices — first, to look at the issue of intent from a subjective perspective, focusing on the speaker, or to look at it from an objective view, focusing on both the speaker and on a hypothetical “reasonable person” exposed to the message.

Anthony Elonis and his supporters argue that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” If that is the test, a jury would have to make its own assessment of what an Internet user like Elonis did have in mind, examining the specific words used and their context.

The federal government and its supporters, however, argue that Elonis’s statements were judged — and should have been judged — by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed?...

The effect of the decision that does emerge almost certainly would be felt in the very public space of such Internet sites as Facebook. For that reason, Elonis is running interference for the Internet as a whole, and especially for those sites where expression is robust, indeed. Much of the discussion in the case, in fact, is on the potential impact on the very provocative postings of rap music, and its fairly common idiom of violence.

November 30, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

"The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama"

The title of this post is the title of this notable new paper on SSRN authored by Jason Zarrow and William Milliken. Here is the abstract:

Teague v. Lane established a general bar on the retroactive application of criminal rules in habeas proceedings.  Substantive rules, however, are not subject to that bar.  In this Article, we consider whether a habeas petitioner may retroactively invoke a substantive rule notwithstanding 28 U.S.C. § 2254(d)(1), a provision of the Anti-Terrorism and Effective Death Penalty Act that precludes federal courts from granting habeas relief to state prisoners unless the state-court adjudication was contrary to “clearly established Federal law.”

We answer this question through the lens of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing schemes mandating life-without-parole sentences for juveniles are unconstitutional.  By tracing the Court’s jurisprudence on substantive rules to its historical roots, we conclude that Miller, while not substantive in toto, contains a substantive component, and that § 2254(d)(1) does not bar habeas petitioners from relying on substantive rules announced after their convictions become final.

November 30, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, November 25, 2014

"Did Marijuana Kill Michael Brown?"

The title of this post is the headline of this provocative and interesting new piece by Jacob Sullum now up at Reason.  Here is how the piece starts and ends:

In a radio interview on August 18, a self-identified friend of Darren Wilson's reported that the police officer suspected Michael Brown was under the influence of drugs the day Wilson shot him to death in Ferguson, Missouri.  "He really thinks he was on something," the friend said, "because he just kept coming."  Wilson made no mention of that theory during his grand jury testimony on September 16, although he did liken Brown to a "demon" and Hulk Hogan, descriptions reminiscent of the evil and strength sometimes attributed to illegal drugs.

One challenge for anyone pushing a pharmacological explanation of Brown's alleged behavior: Despite speculation that he was on PCP, marijuana is the only drug that was detected in his blood.  Kathi Alizadeh and Sheila Whirley, the assistant county prosecutors who presented evidence to the grand jury, did what they could with pot, raising the possibility that Brown had smoked enough to experience "paranoia," "hallucinations," and maybe even a "psychotic episode." They planted that idea in jurors' heads mainly by presenting a toxicologist's misleading testimony about the amount of THC in Brown's blood and the possible effects of large doses....

The prosecutors spent considerable time insinuating that Brown had consumed cannabis in the form of the concentrate known as "wax," even though there does not seem to be any evidence that he did and even though it would not matter if he had.  If the issue is Brown's level of intoxication, the amount of material he burned to achieve it is irrelevant.  The testimony about wax looks like an attempt to exoticize a familiar drug that people do not usually associate with demonic rage or Hulk-like strength.

Then again, marijuana my be exotic enough as far as the prosecutors are concerned. "You explained that the Delta-9-THC has a psychoanalytic effect?"  Alizadeh said at one point. "Psychoactive," the toxicologist corrected her.  Later Whirley asked, "Could this amount of THC that was found in the blood be — is it possible that someone [could be] ingesting that amount on a regular basis and not be dead?" The toxicologist explained that "marijuana really isn't lethal."  Unless you smoke it before getting stopped by a cop, I guess.

November 25, 2014 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Can and should out-going Maryland Gov commute death sentences to ensure LWOP after state's capital repeal?

The question in the title of this post is prompted by this Baltimore Sun article discussing the interesting procedural and practical issues now surrounding the fate of Maryland's death row prisoners and the decisions facing the out-going Maryland Governor who signed the law repealing the state's death penalty.  Here are excerpts from the article:

A western Maryland woman whose parents were killed by a man on death row urged Gov. Martin O'Malley in a phone conversation Monday not to commute the man's sentence. The conversation came days after The Baltimore Sun reported that O'Malley had reached out to two relatives of people killed by men on death row — moves that fueled speculation that, with two months left in office, the governor may be poised to take action on the death penalty cases.

"I said, 'Don't touch this [case], let it go back to court, let the judges decide,'" said Mary Francis Moore, 71, whose father and his wife were killed in 1995 by Heath William Burch. Moore said that in their roughly 15-minute phone conversation, O'Malley did not say what his plans were. But they discussed what might happen to Burch in light of another inmate's appeal. Maryland Attorney General Douglas F. Gansler has joined the appeal, arguing that the state no longer has the authority to execute anyone.

O'Malley "talked about the possibility that if it did go back to court, that these guys would get out, that they would only get life," not life without possibility of parole, Moore said. Moore said she concluded the conversation by asking O'Malley "to pray about it." The governor told her, she said, "I hope we meet some day."...

O'Malley has largely refused to discuss the fate of the men who were already sentenced to death when he and the General Assembly repealed the death penalty last year. The repeal did not apply to them.

Maryland's governor has broad power to pardon or reduce an inmate's sentence, but the authors of the death penalty repeal law included language spelling out that he could change a death sentence to life without parole — even if that sentence did not exist when the inmate committed his crime. Two men on death row commited their crimes before 1987, when Maryland lawmakers established the sentence of life without parole.

Sen. Brian E. Frosh, a proponent of repeal and the attorney general-elect, said Monday that a court would not be able to resentence an inmate to a penalty that did not exist at the time he was convicted, but the governor can.

Advocates on both sides of the issue have been watching to see whether O'Malley might commute the sentences of the four men remaining on death row....

Moore said she "begged" O'Malley not to grant Burch clemency, though he never clearly said he was considering that. She thinks Burch should be put to death. "I asked him, 'What are you going to do, governor?' I asked him two or three times, 'What are your plans?'"...

"The last thing I said to him was, 'I want you to really think about this, and I want you to pray about it, because I want you to do the right thing,'" she said. "The right thing to me is leave it alone."

Even before the death penalty repeal, the status of Maryland's death row inmates had been up in the air since 2006 when the state's regulations for executions were thrown out by a court. They were never replaced. Lawyers from the attorney general's office are scheduled to argue Dec. 8 before a state appellate court that Maryland can't issue new regulations now that capital punishment has been abolished.

An appeal by another death row inmate, Jody Lee Miles, faces an uncertain outcome in the courts. But Gansler has noted O'Malley's authority to commute death sentences to life without parole. Governors in Illinois and New Jersey commuted the existing death sentences in their states after the repeal of capital punishment....

Dorothy Atkinson, whose son was killed by Miles in 1997, said she, too, was contacted by the governor's office about a meeting.... Though Atkinson believes Miles deserves to be executed, she submitted a letter to O'Malley two weeks ago, asking him to commute Miles' sentence to spare her family from the ordeal of further legal wrangling.

I believe that, at least in some jurisdictions, convicted defendants are able to formally refuse to except a grant of clemency. Consequently, I am not entirely sure Gov O'Malley can ensure through a commutation decision that some of the death row prisoners get an LWOP sentence nor that a commutation decision will ensure there is no further legal wrangling over these cases. That said, the procedural and practical issues arising in this setting perhaps provide a strong reason for the out-going Gov to do exactly what the victims' families now request in each case whether that involves a request for commutation or a request to leave this matter to the state courts.

November 25, 2014 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Rounding up some blogsphere reactions to events in Ferguson

In part because it is not a sentencing story, I have not had much to say about all the high-profile events in Ferguson, Missouri in recent months.  But, not surprisingly, a number of other notable criminal law bloggers have shared some thoughts on the no-indictment news and reactions thereto last night.  Here are some of the posts I have seen from bloggers I check out regularly (listed in alphabetical order):

November 25, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender, Weblogs | Permalink | Comments (5) | TrackBack

Monday, November 24, 2014

"Will Texas Kill an Insane Man?"

The question in the title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ.  A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”

It was not an act.  Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.  

In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals.  But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill....

But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”

Mr. Panetti has not had a mental-health evaluation since 2007.  In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse.  For instance, he now claims that a prison dentist implanted a transmitter in his tooth.

The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.

On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.

November 24, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, November 21, 2014

"'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty"

The title of this post is the title of this notable new paper by Michael Perlin available via SSRN. Here is the abstract:

The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly.  I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.

This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.

November 21, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack