Friday, October 10, 2014

Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive

As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences.  In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:

In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole.  In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).  This Court accepted certification of two questions from the district court.  The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review.  The second question is whether Miller applies retroactively under our chosen test.

We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years.  This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists.  We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions.  In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).  In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.

October 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Oklahoma has impressive early success with revised earned credit program

This local article, headlined "Most Oklahoma inmates granted early release since March have stayed out of trouble," reports on another positive state criminal justice reform effort. Here are the details:

Santajuan M. Stepney was released from prison in March after serving less than half of a 10-year sentence for possession of marijuana.  By mid-July, he was back in prison, this time sentenced to two years for beating his wife in Canadian County.

Stepney, 31, was among about 1,500 inmates granted an early release by the Corrections Department after they had good-behavior credits restored through the once-obscure Earned Credits program.  The releases in question began in March, according to the agency.

A state lawmaker recently questioned the program, saying restoration of good-behavior credits and early release is in the name of saving money, while Corrections Department officials have defended its expanded use....

Jerry Massie, a spokesman for the Corrections Department, said Stepney and inmate Brian Harvey, who was granted early release in March, are the only members of the group who’ve returned to prison since being set free under the Earned Credits program....

Last week, Rep. Aaron Stiles told The Oklahoman he believes Robert Patton, who was hired as the Corrections Department’s executive director earlier this year, is directing staff to release inmates by restoring the good behavior credits that had been lost due to infractions while behind bars.  Stiles said Patton is doing so to save money as the cash-strapped prison system continues to struggle with tight budgets and overcrowded prisons.

The lawmaker said “several” Corrections Department employees have contacted him about the mass release of inmates with good behavior credits restored.  He said some of the employees, who feared speaking openly, “made recommendations that certain people not be released, but they get overruled by upper level DOC administration.”

“It is all about saving money,” Stiles said last week. “They had 1,800 inmates in county backup. So how do you make room for 1,800 prisoners? Release 1,800 convicts early.”

The Earned Credits program has been around about 20 years, officials say, but it’s never been as widely used as it is now.  Essentially, the program allows inmates to have good-behavior credits restored if they’ve been lost as a result of misconduct. The program does not apply to inmates who are required to serve a minimum amount of their sentence, such as 85 percent crimes like rape, murder, and many sex crimes.

Terri Watkins, a spokeswoman for the Corrections Department, said increased use of the program isn’t all about saving money. She said it’s part of a series of changes made by Patton, and that those changes will continue in the future.

This partial report about early success with a revised corrections program in one state does not, obviously, prove conclusively that significant early releases can be achieved without a huge public safety impact. Nevertheless, given the ugly reality that recidivism rates for released prisoners can often exceed 40%, the folks in Oklahoma must be doing something right if only less than 0.15% of prisoners released early this year have committed a crime requiring requiring being sent back to prison so far.

October 10, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, October 09, 2014

Texas succeeds with new laws intended to disrupt school-to-prison pipeline

Discovering the (perhaps somewhat unexpected) success of reforms in (perhaps somewhat unexpected) states is one of the great joys of following closely state-level criminal justice policy and practice.  For example, this new local article showcases how Texas is achieving success at addressing problems often stressed by juvenile justice advocates.  The piece is headlined "New laws drastically cut prosecutions of Texas students," and here is how it starts:

Working as intended, two state laws passed in 2013 have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show.  Including other misdemeanor school-based offenses, almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts, two Texas House committees were told Wednesday.

“We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the state Office of Court Administration.  The sharp decline in the number of juvenile prosecutions, publicized for the first time at Wednesday’s joint hearing of the House Corrections and Public Education committees, offered early evidence that the laws were working to reduce the number of children saddled with criminal records for relatively minor school offenses, legislators and criminal justice advocates said.

“We have seen major success as a result of the passage of these bills,” said Mary Schmid Mergler with Texas Appleseed, a legal advocacy group.  “School discipline had increasingly moved from the schoolhouse to the courthouse, and misbehavior that used to mean a trip to the principal’s office was landing children in court and resulting in criminal convictions,” she said.

The offenses targeted by the laws are prosecuted in municipal and justice of the peace courts — adult settings that lack protections found in juvenile court, such as appointed lawyers and confidentiality rules — and can result in criminal convictions that often make it difficult to find housing, enter college or join the military, Mergler said.

The laws, known as Senate Bills 393 and 1114, barred police officers from writing tickets for Class C misdemeanors that occur on school grounds, though traffic violations are exempt from the ban.  Officers also cannot issue citations for school offenses such as causing disruptions in class or on a school bus.

October 9, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes"

The title of this post is the title of this lovely essay by Daniel Richman now available via SSRN. Here is the abstract:

This essay — written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” — is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities.

Readers undoubtedly can come up with more than three styles.  But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”

October 9, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 08, 2014

Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement

A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here).  The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:

Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry.  Once convicted, they serve a term of imprisonment, and then are again deported.  The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a “fast-track” plea agreement that binds the government and the defendant, but not the district judge.

The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources.  It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal.  The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines.  What is the incentive for the defendant to take this deal?  The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “united front” in favor of a reduced sentence to the district judge.  If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.

Paul Gabriel Morales Heredia (Morales) was one such defendant.  But in Morales’s case, the orderly and efficient plea-bargaining process did not play out as intended.  The government extended the promise of a reduced prison term with one hand and took it away with the other.  The prosecutor’s recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history, adding for good measure his personal opinion that “defendant’s history communicates a consistent disregard for both the criminal and immigration laws of the United States.” Morales’s counsel timely objected and sought specific performance of the plea agreement.  The district judge denied this relief on the irrelevant ground that the prosecutor’s statements did not influence him.  We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.

October 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, October 07, 2014

"Trial Bargaining"

The title of this post is the title of this notable new article by Gregory Gilchrist now available via SSRN. Here is the abstract:

Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency.  Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.

The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases.  Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials.  The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.

This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining.  Through the mechanism of waiver — the very tool that makes plea bargaining possible — trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency.  As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.

October 7, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, October 06, 2014

Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case

Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.

But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday.  This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.

Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon.  It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent.   Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over.  But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.   

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 6, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

SCOTUS summarily reverses Ninth Circuit habeas grant on AEDPA deference grounds

Thanks to this post by Kent Scheidegger over at Crime & Consequences, I just saw that the Supreme Court kicked off the first Monday of October with its first reversal of the Ninth Circuit in a criminal case. Here is how the per curiam opinion in Lopez v. Smith, No. 13-346 (S. Ct. Oct. 6, 2014) (available here), gets started:

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).  We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.”  See, e.g., Marshall v. Rodgers, 569 U.S. __, __ (2013) (per curiam) (slip op. at 6).  Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.

After reporting on this SCOTUS development, Kent added this pointed commentary about the general failure of lower federal courts to show adequate AEDPA deference:

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954). Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

October 6, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Highlighting and lamenting the too potent powers of prosecutors

The Economist has these two new pieces spotlighting and complaining about the powers of modern prosecutors:

Here is an excerpts from the end of the first piece linked above:

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems.  Judge [Jed] Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining — for instance by bringing in a magistrate judge to act as a broker.  He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials.  This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid.  But they have accumulated so much power that abuse is inevitable.  As [Justice Robert] Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

October 6, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 05, 2014

Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'"

An otherwise unremarkable federal drug sentence appeal in the US v. St. Hill, No. 13-2097 (1st Cir. Oct. 1, 2014) (available here)  took on some blogworthy character because of a lengthy concurrence by Judge Torruella. Here is the start, heart and close of Judge Torruella's opinion in St. Hill:

I join the court's opinion but write separately to note a disturbing trend in criminal prosecutions.  All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) of the Sentencing Guidelines ("Guidelines") to argue for significantly enhanced terms of imprisonment under the guise of "relevant conduct" — other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt....

St. Hill was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pleaded guilty to, and never convicted of by a jury beyond a reasonable doubt.  This is a prime example of the tail wagging the dog.  Even more disturbing: the government could, if it so chooses, still charge St. Hill for these uncharged crimes in a separate proceeding, and he could be convicted and sentenced again without protection from the Double Jeopardy Clause.  See Witte v. United States, 515 U.S. 389, 406 (1995)....

[I]f the government intends to seek an increase in a criminal defendant's sentence for conduct that independently may be subject to criminal liability, the government should charge that conduct in the indictment.  The Fifth Amendment requires that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V, while the Sixth Amendment provides an accused with the right to a trial "by an impartial jury," id. amend. VI.  The practice of arguing for higher sentences based on uncharged and untried "relevant conduct" for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants.  Cf. Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.").  The government's role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence.  And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless....

Nevertheless, as a judge, it is my responsibility to faithfully apply the law as articulated by both the Supreme Court and this court, and I do not dispute that both the Guidelines and our interpretation of them currently condone this questionable process.  See Witte, 515 U.S. at 396, 406 (finding no constitutional violation where the sentence was based in part on a cocaine offense that defendant "clearly was neither prosecuted for nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) (finding no constitutional violation where the district court "choose[s] to give weight to the uncharged offenses in fixing the sentence within the statutory range if it finds by a preponderance of evidence that they occurred").  I nonetheless question whether this interpretation should be revisited — either by the courts or by revisions to the Guidelines.

October 5, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Friday, October 03, 2014

SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"

ThIn this post I lamented that the Supreme Court this week did not grant cert on any new sentencing cases.  But there is still some sentencing fun on the SCOTUS docket thanks to the Justices seemingly never having enough fun with interpretations of the Armed Career Criminal Act.  Helpfully, Professor Stephen Rushin, who filed in an amicus brief in the latest ACCA case, was kind enough to prepare for posting here a thoughtful preview of a case to be argued to the Justices in early November.

With kudos and thanks to Prof Rushin for this material, here is his preview:

------

What criminal offenses pose the greatest risk of injury to others? This is the empirical question at issue in a case, Johnson v. United States, before the U.S. Supreme Court this coming term. The case stems from the Armed Career Criminal Act (ACCA), which provides for punishment enhancements for offenders previously convicted of burglary, arson, extortion, use of explosives, and any other felony that presents “serious potential risk of injury to another.”

Since the passage of the ACCA, courts and litigants have struggled to determine which felonies pose such a “serious potential risk of injury to another.” The Court has interpreted this so-called residual clause of the ACCA to cover a range of felonies, including attempted burglary and fleeing from a police officer in a motor vehicle.    

In Johnson, the Court must now decide whether the residual clause also covers the possession of a short-barreled shotgun. So how dangerous is mere possession of an unlawful weapon? Professors Evan Lee, Eric Johnson, and I recently submitted an amicus brief in the Johnson case, arguing that the ACCA ought to cover these sorts of weapons law violations. 

At first, our argument may seem counter-intuitive. How, after all, can mere possession ever pose a “serious potential risk of injury to another?” Well that depends on how you define a “potential risk of injury.” Admittedly, offenses like weapons possession cannot, or usually do not, injure another person directly. But that does not mean that such offenses do not pose “serious potential risk of injury to another.” Congress’s use of the word “potential” in conjunction with the word “risk” suggests that a felony need not be the direct or exclusive source of an injury in order to qualify under the residual clause. We read the ACCA to mean that any offense that facilitates or is otherwise meaningfully associated with highly injury-prone offenses “poses a serious potential risk of injury.”

Of course, this raises the next obvious question—to what extent are weapons law violations, like possession of a short barreled shotgun, associated with injuries to victims? In previous ACCA cases, the Court has turned to a wide range of statistical data to measure the dangerousness of various felony offenses. In each case, the Court has attempted to find accurate statistical measures of how frequently a particular felony offense leads to injuries. The Court then compares this to the approximate injury frequency of injuries stemming from the offenses explicitly enumerated in the ACCA—burglary, arson, extortion, and use of explosives. 

This basic methodology makes perfect sense. Since Congress specifically enumerated a small number of offenses as “violent felonies” in the ACCA, the Court should presume that any offense of equal or greater dangerousness also warrants inclusion under the residual clause. But in employing this methodology, the Court has often relied on weak statistical data.

In entering into this ongoing debate, my coauthors and I make a simple recommendation to the Court in our amicus brief. We suggest that the Court should use the National Incident Based Reporting System (NIBRS) in measuring the dangerousness of offenses under the ACCA residual clause. For the unfamiliar, we have traditionally recorded crime data in the U.S. via the Uniform Crime Reports (UCR), which primarily record aggregate-level information on the prevalence of eight major criminal offenses—homicide, aggravated assault, rape, burglary, larceny, arson, and auto-theft. With the exception of homicides, these UCR records little to no details about the circumstances surrounding each offense. Recently, though, the FBI has begun collecting additional crime data through the database known as NIBRS. This system requests information from local law enforcement agencies on 46 different offense categories. NIBRS also groups together criminal offenses into incident-level data. This means that if an offender commits two different offenses as part of a single criminal incident, NIBRS groups these two offenses together for data analysis purposes. For example, suppose that an offender commits an assault in the course of committing a burglary. Traditionally, the UCR would register that event as two separate criminal events. By contrast, NIBRS groups together these two criminal offenses into a single incident. Police agencies that use NIBRS also report information on the circumstances of each criminal incident, including whether the incident resulted in any physical injuries to victims.

Of course NIBRS is not perfect. The NIBRS database is not perfectly representative of the United States. Although NIBRS greatly expands on the number of offense categories traditionally used in the UCR, it still cannot capture every single offense category. Nevertheless, NIBRS represents perhaps the best statistical resource available for measuring the “potential risk of injury” associated with felony offenses. For one thing, NIBRS represents the largest and most comprehensive database on injuries associated with criminal offenses. In addition, because NIBRS groups together multiple offenses into incidents, it allows researchers to measure more accurately the risk associated with criminal offenses. And NIBRS allows the Court to compare the dangerousness of different felony offenses accurately because it uses a consistent methodology across reporting jurisdictions.

So how do weapons law violations stack up compared to the explicitly enumerated felonies listed in the ACCA? In a previous study, Evan Lee, Lynn Addington, and I found that weapons law violations like possession of a short-barreled shotgun were more frequently associated with injuries than burglaries, arsons, or extortions. 5.36 percent of incidents involving weapons law violations in 2010 led to some type of physical injury to a victim, compared to just 4.41 percent of extortions, 1.11 percent of arsons, and 1.02 percent of burglaries.

Of course, these sorts of statistics alone cannot resolve the question before the Court. But we argue that this data cuts in favor of including weapons law violations under the ACCA residual clause.

October 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

"The Future of Juvenile Appeals in the United States"

The title of this post is the title of this new paper by my OSU colleague Katherine Hunt Federle now available via SSRN. Here is the abstract:

Appellate review of delinquency adjudications is necessary to protect the rights of juvenile defendants and preserve the integrity of the juvenile process.  Review is no less important than in adult criminal courts, where the reversal rate on appeals is high enough to suggest that “depriving defendants of their right to appeal would expose them to an unacceptable risk of erroneous conviction.”

Unfortunately, juveniles often fail to exercise this essential right because they are discouraged to do so by courts, denied access to the tools necessary to appeal, or lack the sophistication or means to file appeals.  Moreover, because of strict time limits for filing, appellate rights expire.  These time frames, which impose an unnecessary and unfair bar to effective review, are inconsistent with protections afforded juveniles in non-delinquency matters.  Tolling the time within which to file an appeal during minority, however, may ensure greater (and necessary) access to the appellate courts.

October 3, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, October 02, 2014

"Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel"

The title of this post is the title of this intriguing looking article authored by Sara Mayeux now available via SSRN. Here is the abstract:

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer.

In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

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

SCOTUS grants cert on lots of new cases, with only two on criminal procedure and one on prisoner suits

The Supreme Court this morning released this list of order, which includes orders granting certiorari review in ten new cases. A quick scan of the list does not reveal any notable sentencing cases and only two criminal law cases: Ohio v. Clark, which seems to involve a Confrontation Clause issue; Rodriguez V. US, which seems to involve a Fourth Amendment traffic stop matter.  In addition, Coleman v. Tollefson was granted concerning a prisoner's ability to bring a civil suit against correction officials.

I am quite bummed that this order list suggests the Justices are not interested in any sentencing issues raised in the long conference. It is possible that SCOTUS may "relist" rather than outright deny some sentencing petitions I have been following concerning issued like acquitted conduct guideline enhancement and/or Miller retroactivity. But after a period of years in the aftermath of Blakely and Booker, when we could expect a number of major sentencing rulings almost every Term, it lately seems like the Justices are actively trying to avoid taking up any major sentencing cases. Oh well.

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

Tuesday, September 30, 2014

"A Plea for Funds: Using Padilla, Lafler, and Frye to Increase Public Defender Resources"

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

In the same way that the Court revolutionized the criminal justice world with its ruling in Gideon, Padilla, Lafler, and Frye might also radically change the criminal justice landscape.  This Article will attempt to answer the following question: if there is a solution for the ever-growing case load of the public defender and the crisis of indigent defense, can PadillaLafler, and Frye be a significant part of the solution?

This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet.  It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements.  To do so, I will begin in Part II by discussing guilty pleas in general.  I will then describe the legal landscape prior to Padilla, Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV.  In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining.  In Part VI, I will discuss the problem of the overburdened public defender office.  Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.

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

Monday, September 29, 2014

Notable new AG Holder memorandum on charging policies and plea negotiations

I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations."  This full one-page memo, which is dated September 24, 2014, can be downloaded below.  Here are its most notable sentences, with my emphasis added:

The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases."  That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter.  An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.  This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.

While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.

Download AG-Letter-Regarding-Enhancements-in-Plea-Negotiations

I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."

September 29, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Mitigating Foul Blows"

The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions.  Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error.  Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.  This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize.  As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases.  These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.

September 29, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, September 27, 2014

Arizona poised to take second (costly) run at death sentence for Jodi Arias

As reported in this AP article, headlined "Life or Death? Arias Set for Sentencing Retrial," prosecutors in Arizona are about to take another run at convincing a jury that murderer Jodi Arias should be condemned to die for her crime.  Here are the basics:

Jodi Arias' guilt has been determined. The only thing that remains is whether she dies for killing her ex-boyfriend. More than six years after his death, and more than a year after being convicted of murder, a second penalty phase to determine her punishment gets underway Monday with jury selection.

Arias acknowledged that she killed Travis Alexander in 2008 at his suburban Phoenix home but claimed it was self-defense.  He suffered nearly 30 knife wounds, had his throat slit and was shot in the head. Prosecutors argued it was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.

The 34-year-old former waitress was found guilty last year, but jurors couldn't agree on a sentence.  While Arias' murder conviction stands, prosecutors are putting on the second penalty phase with a new jury in another effort to secure the death penalty.

If the new jury fails to reach a unanimous decision, the judge will then sentence Arias to spend the rest of her life behind bars or to be eligible for release after 25 years. At least 300 prospective jurors will be called in the effort to seat an impartial panel, not an easy task in the case that has attracted so much attention....

One key difference in the second penalty phase is that there will be no live television coverage.  Judge Sherry Stephens ruled that video cameras can record the proceedings, but nothing can be broadcast until after the verdict.  Arias' five-month trial began in January 2013 and was broadcast live, providing endless cable TV and tabloid fodder, including a recorded phone sex call between Arias and the victim, nude photos, bloody crime-scene pictures and a defendant who described her life story in intimate detail over 18 days on the witness stand.

Arias' attorneys claimed the televised spectacle led to threats against one of her lawyers and defense witnesses who opted not to testify.  Citing Arias' right to a fair trial, Stephens is erring on the side of caution this time around.

The retrial is expected to last until mid-December.

In this prior post, it was reported way back in January that "Jodi Arias' legal bills have topped $2 million."   If this new penalty trial really extends a coupld of months, I suspect the tab for Arizona taxpayers will surely be nearly another million, and the imposition of a death sentence would also ensure many years of expensive appeals.  Especially given the relatively low odds that Arias will actually ever be executed, I cannot help but wonder if all these Arizona taxpayer millions might have been better spent on a more productive cause.

Some prior posts on the Arias case:

September 27, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Friday, September 26, 2014

"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"

The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled.  As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded?  The answer is yes, and the Georgia courts do not understand why we are scratching our heads.  The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.

Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled.  In 1986, Georgia became the first state to ban executions of the intellectually disabled.  It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.

Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed.  Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed.  The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.

September 26, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack