Tuesday, April 08, 2014

NY Times debates "What It Means if the Death Penalty Is Dying"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the death penalty in the United States.  Here is the section's set up:

Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty.  If passed, the law would make New Hampshire the 19th state to abolish capital punishment.  The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.

As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?

Here are the contributions, with links via the commentary titles:

April 8, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Friday, April 04, 2014

"Should T.J. Lane's 3 life sentences get another look from the appellate court?"

TJ laneThe title of this post is the question in the headline of this local editorial discussion of a high-profile school shooter who might be the type of juvenile murderer that even the US Supreme Court would conclude can be given a juvenile LWOP sentence.  Here are a few excerpts:

The lawyer for Chardon High School shooter T.J. Lane wants an appellate court to overturn Lane's three consecutive life sentences for the 2012 shootings in which three students died and three were wounded on the grounds that the sentencing judge didn't explicitly consider Lane's age — 17 at the time of the crime — as a mitigating factor in the sentencing. A recent Ohio Supreme Court ruling in another case said a judge must specifically address the age of a juvenile defendant when sentencing a youth to life without parole. Geauga County prosecutors say the appeal is frivolous because Geauga County Common Pleas Judge David Fuhry was well aware of Lane's age throughout the proceedings and that his age also featured prominently in the many reports on T.J. Lane's psychological state and life going back to kindergarten that Fuhry had before him at sentencing.

Does Lane's lawyer raise a valid point or should the three life sentences stand?  Editorial board members share their thoughts on this case...

Thomas Suddes, editorial writer: The appeal of T.J. Lane's sentencing is a perfect example of why so many Ohioans, like Charles Dickens' Mr. Bumble, think "the law is a ass  — a idiot." First, Lane pleaded guilty to killing three students, and wounding three others, in Chardon High School's cafeteria.  His guilty plea is a fact. There is no question about his guilt, no doubt his guilty plea was voluntary.  Those, too, are facts.  Second, Lane's sentence — three consecutive life terms in prison without parole — was, is, eminently just. Third, unless an Ohioan was on Mars, virtually everyone who knew of the Chardon murders, and just about everybody in Ohio did know about them, also knew that Lane was 17 when he embarked on his homicidal rampage....

The facts of the sentencing that resulted from the Cincinnati case are whatever those facts are.  But no rational bystander can claim that Fuhry was unaware of, or failed to take into account, Lane's age when he murdered.  Everyone charged with a crime is entitled to a vigorous legal defense, but given the facts of the Lane case, and his guilty plea, this appeal represents the privileging of form over substance.  In Lane's case, justice was done. And justice was seen to be done.  And justice requires the dismissal of this appeal.

Kevin O'Brien, deputy editorial page editor, The Plain Dealer:  Age is an arbitrary measure that often comes into play in the law.  People under 21 cannot legally consume alcohol — a rule made based on the supposition that allowing otherwise would be detrimental to social order.  T.J. Lane’s lawyer is making a general argument about 17-year-olds that doesn’t fit the specifics of his client’s case.  Lane knew what he was doing in the school cafeteria, and he certainly was aware that it was wrong.  He knew what he was doing at his sentencing hearing, when he wore his disgustingly boastful T-shirt.  He is a cowardly assassin who, far from showing any remorse, has gone out of his way to compound the emotional hurt to his victims’ loved ones.   He is right where he belongs, and three consecutive life sentences are perfectly appropriate.

Elizabeth Sullivan, opinion director, Northeast Ohio Media Group: Judges should consider a young offender's age when sentencing someone to life in prison without any possibility of parole.  The Ohio Supreme Court is absolutely right about that, and if any judge fails to do so, he or she should be challenged on it.  But it seems the most trivial of technicalities to suggest that Judge David Fuhry in Geauga County didn't consider T.J. Lane's age simply because he didn't explicitly reference it in his sentencing decision.  Lane's age was a factor throughout this case, whether or not the judge spoke to it during sentencing. That's why this appeal is likely going nowhere.  And if the appellate court takes a second look, what then?  Two consecutive life terms instead of three?  All the data before the judge at the time of sentencing pointed to the fact that T.J. Lane, a clearly disturbed and dangerous young man, should be locked up for life.

Christopher Evans, editorial writer, Northeast Ohio Media Group: The cold-blooded executions of three Chardon High School students and the wounding of three others, the lack of remorse and the contempt for the families, the community and the justice system made Lane ageless. He wasn't 17. He was psycho. The smirk, the handwritten "Killer" T-shirt — which mirrored the one he wore when he opened fire in the school cafeteria — and his offensive comments to the packed courthouse all speak to that. Lane earned every minute of those three life sentences for the three lives he took.  But we're better than T.J. Lane.  Reduce his sentence to two life sentences without parole.  I can live with that.

Prior related post:

April 4, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

Thursday, April 03, 2014

Serial killer hoping SCOTUS will be troubled by execution drug secrecy in Texas

As highlighted in this AP article, a legal challenges based on execution drug secrecy is now before the Supreme Court after a Texas death row defendant has won and then lost on lower courts in his effort to block his execution.  Here are the basics:

Attorneys for a serial killer asked the U.S. Supreme Court to halt his execution set for Thursday in Texas as they challenge that state's refusal to release information about where it gets its lethal injection drug.

Lawyers for Tommy Lynn Sells made the plea after a federal appeals court allowed the execution to stay on schedule.  A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal.  "It is not in the public interest for the state to be allowed to be deceptive in its efforts to procure lethal injection drugs," Sells' attorneys told the high court.

The appeal was one of two separate issues pending before the justices.  Another before the court since last month asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.

Sells, who was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999, claims to have committed as many as 70 killings across the U.S. The 49-year-old is scheduled to be lethally injected Thursday evening in Huntsville. Sells' attorneys argue that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.

But 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the company from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency.  The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."

It's unclear how the Supreme Court would rule. Last month it rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death....

A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.

The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week.  But the 5th Circuit ruling affected only Sells. Maurie Levin, an attorney for the inmates, said Sells' case would be appealed to the U.S. Supreme Court. Levin said the lower court ruling, which had ordered the Texas Department of Criminal Justice to give defense attorneys details about the drug supplier and how the drug was tested, "honors the importance of transparency in the execution process."

If Sells' execution is carried out Thursday, it would be the fifth lethal injection this year in Texas, the nation's busiest death-penalty state.

Sells had dubbed himself "Coast to Coast," a nod either to his wandering existence as a carnival worker or to his criminal history. Court documents said he claimed as many as 70 murders in his lifetime in states including Alabama, California, Arizona, Kentucky and Arkansas. "We did confirm 22 (slayings)," retired Texas Ranger John Allen said this week. "I know there's more. I know there's a lot more. Obviously, we won't ever know."

UPDATE: This AP story reports that Sells "was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug."

April 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (43) | TrackBack

Wednesday, April 02, 2014

Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"

Image001I am very pleased and very excited that on April 15 this year I will be spending all day thinking and talking about something other than my income tax forms.  That is because, as detailed in the program linked at the bottom of this post, I will be spending that day attending and speaking at the Sixth Annual Conference of the NYU Law School's Center on the Administration of Criminal Law.  This year's NYU Center conference is focused on clemency and related topics.

The full official title for the event, which runs from 10am to 4pm at NYU Law is "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies," and the keynote speaker is White House Counsel Kathryn Ruemmler.  Here is a brief account of the panels and participants scheduled to surround the keynote:

Panel 1: The Role of Law Schools in Delivering Clemency and Post-Conviction Assistance.

This panel will discuss how law schools are providing critical services to prisoners through clemency clinics and other mechanisms, and will also provide practical training on how to effectively prepare clemency petitions, post-conviction motions and provide other reentry support to prisoners.

Moderator: Prof. Mark Osler, University of St. Thomas Law School.  Panelists: Prof. Anthony Thompson, NYU Law; Prof. J.P. “Sandy” Ogilvy, Columbus School of Law, Catholic University; Harlan Protass, Esq., Clayman & Rosenberg; Prof. Joann M. Sahl, University of Akron Law School.

Panel 2: What We Can Learn About Clemency From the States.

This panel will examine the different ways clemency and pardon petitions are administered in selected states with effective systems.

Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Lt. Governor Matthew Denn, State of Delaware; Hon. Robert L. Ehrlich, Jr., King & Spalding and former Governor of Maryland; Margaret Love, Esq., former U.S. Pardon Attorney; Jorge Montes, Esq., former Chairman of the Illinois Prisoner Review Board.

Panel 3: The Future of Clemency.

This panel will discuss recent developments in federal clemency and where clemency could and should be headed in the future.

Moderator: Prof. Rachel E. Barkow, NYU Law. Panelists: Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel; Prof. Paul G. Cassell, University of Utah Law School; Prof. Douglas A. Berman, The Ohio State University Moritz College of Law; Sam Morison, Esq.; Dafna Linzer, Managing Editor of MSNBC.com.

Persons can register for this great and timely conference at this link.

Download CACL.ClemencyProgram5

April 2, 2014 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, April 01, 2014

"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"

The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.

In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.

April 1, 2014 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Monday, March 31, 2014

Controversy long after du Pont heir got probation as punishment for raping his small daughter

As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public.  Here are the details: 

A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.  

Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape.  Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.

Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.

"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...

O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system."  Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005.  He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....

The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3.  Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.

State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count.  According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.

Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.

Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years.  But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.

"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said.  Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.

At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time.  Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.

While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.

Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....

Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."

Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.

March 31, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Friday, March 28, 2014

Could Oklahoma ruling declaring drug secrecy unconstitutional impact execution plans nationwide?

The question in the title of this post is prompted by this new Reuters article, headlined "U.S. executions set for possible delay after Oklahoma court decision."  Here are excerpts:

An Oklahoma judge ruled on Wednesday the state's secrecy on its lethal injections protocols was unconstitutional, a decision that could delay executions in other states where death row inmates are planning to launch similar challenges.

County district court judge Patricia Parrish ruled the state violated due process protections in the U.S. Constitution by not providing the name of the drug supplier, the combination of chemicals and the dosages used in executions. Oklahoma's attorney general said the office will appeal.

Oklahoma and other U.S. states have been struggling to obtain drugs for executions. Many pharmaceutical firms, mostly in Europe, have imposed sales bans because they object to having medications made for other purposes used in lethal injections. The states have looked to alter the chemicals used for lethal injection and keep the suppliers' identities secret. They have also turned to lightly regulated compounding pharmacies that can mix chemicals.

But lawyers for death row inmates argue drugs from compounding pharmacies can lack purity and potency and cause undue suffering, in violation of the U.S. Constitution. "Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Fordham Law Professor Deborah Denno, who specializes in the legalities of lethal injections....

Legal experts expect more states to face challenges that will delay executions, but if they settle transparency issues, many will resume putting inmates to death. "Almost every state is hiding part of the process, or is attempting to," said Richard Dieter, the executive director of the Death Penalty Information Center....

For now, several of the 32 states with the death penalty are keeping mum about business transactions for execution drugs. Texas, which has executed more prisoners than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of the drug it uses for its executions. But Texas will not identify the supplier, citing "previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," the Texas Department of Criminal Justice said in a statement.

Alabama said this week it has run out of one of the main drugs it uses, putting on hold executions for 16 inmates who have exhausted appeals and face capital punishment. It is also looking at ways to keep the name of drug providers secret. Inmates in Missouri, which carried out an execution this week, have sued the state over execution protocols that include layers of secrecy.

Arizona said on Wednesday it had to change its lethal injection cocktail because it could not obtain the drugs it once used. "Being lost in the conversation and political maneuvering is the fact that family of murdered loved ones are paying the ultimate price as they wait for justice to be carried out," Arizona Attorney General Tom Horne said in a statement.

Some related prior posts:

March 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

"Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"

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

Risk has become a focal point of criminal justice policy.  Officials draw upon the sciences for the best evidence to differentiate between offenders at high risk of being a future threat to society, for whom preventive incapacitation may be justifiable, and those at low risk, for whom diversion might alleviate the overuse of imprisonment.  A recent turn in evidence-based practices is to borrow the newest technologies developed in the forensic mental health field to better classify offenders accordingly to their predicted likelihood of recidivism.

Actuarial risk assessment is considered the new frontier as a progressive sentencing reform, representing best practices in predicting recidivism risk.  The actuarial turn is adjudged to offer probabilistic estimates of risk that are objective, reliable, transparent, and logical.  Policy groups, state legislatures, judges, and probation offices actively promote the use of actuarial risk assessment, believing the empirically-derived tools effectively standardize sentencing practices, mitigate bias, and thereby increase the legal and moral standing of sentencing outcomes.

Actuarial prediction is promoted as founded upon scientific and empirical principals.  This Article critically analyzes the predictive abilities of actuarial risk prediction tools utilizing statistical, empirical, and legal methods.  A specific focus herein is the risk prediction of those criminals for whom fear is strongest: violent and sexual offenders.

Several questions are of interest: Is widespread reliance on actuarial sentencing justified? Are actuarial risk results sufficiently relevant, valid, and reliable for sentencing law?  Is actuarial evidence too prejudicial, confusing, and misleading to meet evidentiary standards in sentencing?  

The Article addresses proponents’ arguments that, regardless of any weaknesses, actuarial risk results should be admissible because they constitute merely one piece of evidence in a multi-faceted decision and that any flaws or errors in the evidence can be deduced through normal adversarial processes.

March 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, March 26, 2014

Killer bride Jordan Graham moves to withdraw murder plea claiming feds breached deal in sentencing arguments ... UPDATE: motion denied!

I am intrigued and amazed to learn via this local article, headlined "Newlywed asks to withdraw guilty plea in husband's murder," that the Montana killer bride has now formally moved to withdraw her guilty plea based on the assertion that the federal prosecutors' sentencing arguments breached the (mid-trial) plea deal struck between defendant Jordan Graham and the feds.  Here are the details: 

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.” Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.  If he rejects her motion, the sentencing could continue as planned.

In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors “breached the plea agreement” by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation. That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement “nothing but an empty promise” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder.  In exchange, prosecutors agreed to drop a first-degree murder charge — and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.  “By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,” Donahoe wrote Tuesday.  “That was the entire purpose of the plea agreement,” he added.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison  — or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.  Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.  That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail. Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation....

On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void — and asked the judge to allow Graham to withdraw her admission of guilt....  “By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a ‘fair and just reason’ to support defendant’s request to withdraw her plea,” Donahoe wrote. “The government’s plea agreement promise ... is an empty and hollow formality,” he said. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

I expect the government will file a full-throated response to this motion sometime today. And I am sure the government will stress that, by taking a plea to the lesser-charge of second-degree murder, Garaham got an extraordinarily important sentencing benefit: the sentencing range for that charge is a range of 0 to life, whereas a first-degree murder conviction carried a mandatory LWOP sentence. I fully understand why Jordan Graham and her lawyer are troubled that the feds are making a forceful sentencing argument for an LWOP sentence, but I am not sure why its sentencing advocacy alone provide a basis for withdrawing a seemingly otherwise valid (and valuable) plea.

I have been obsessing about the upcoming sentencing in this case with my sentencing students because, as noted in this recent post, I think it provides a great and accessible tutorial on federal plea bargaining and sentencing realities. Little did I expect that this live tutorial would take on this interesting extra lesson.

Previous related posts (with lots of interesting prior comments):

UPDATE:  As this AP article reports, prosecutors do not agree that they breached any promises in this case:

Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.

Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement. At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.

The federal government is not limited by the defendant’s description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.

The government’s sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because “the circumstances surrounding Cody’s death closely resemble conduct that is often associated with a first-degree murder conviction.”

Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn’t hear from her at all again that night, “something happened,” indicated Graham was “planning and considering murder.”

Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham’s motion might affect the sentencing schedule.

ANOTHER UPDATE:  Unsurprisingly, as this local article reports, the "judge has denied a Kalispell newlywed's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer." Here is more:

U.S. District Judge Don Molloy began Thursday's sentencing hearing by considering Jordan Linn Graham's motion to withdraw her guilty plea to second-degree murder....

Molloy ... ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December - and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing. 

March 26, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Tuesday, March 25, 2014

"Victim Gender and the Death Penalty"

The title of this post is the title of this notable new empirical paper authored by a whole bunch of folks at Cornell Law School and now available via SSRN. Here is the abstract:

Previous research suggests that cases involving female victims are more likely to result in death sentences.  The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware.  Death was sought much more for murders of either male or female white victims compared to murders of black male victims.  Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases.  The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.

March 25, 2014 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, March 24, 2014

What procedural rights should juve killers have at parole proceedings?

The question in the title of this post is prompted by this intriguing article in the Boston Herald headlined "Killers convicted as teens could make bids for parole concessions." The piece highlights some of the intriguing and potentially controversial procedural issues that necessarily arise if and whenever a state has to figure out just what it means to give serious juvenile offenders a meaningful chance to secure parole release from a life sentence.  Here are the details:

A killer whose court victory cleared the way for dozens of lifers convicted as teens to seek freedom is expected to make new demands before a judge today, including giving cons the opportunity to cross-examine anyone who argues against their release. But Suffolk District Attorney Daniel F. Conley said Gregory Diatchenko — who was 17 in 1981 when he plunged a knife through the face and heart of 55-year-old Thomas Wharf in Kenmore Square while screaming, “Give me your money, you (expletive),” — is asking too much.

“What he’s asking for would essentially give him a new trial on a first-degree murder charge for which he was already found guilty. This is a case of a convicted killer being given an inch and now demanding a mile,” Conley said.

The Supreme Judicial Court, in a controversial bombshell decision dropped on Christmas Eve that mirrored a 2012 ruling by the U.S. Supreme Court, ruled that keeping teen killers behind bars without a chance of parole was cruel and unusual punishment because children under age 18 lack the ability to appreciate their crimes. The court, ruling on an appeal by Diatchenko, found teen killers should be given a “meaningful opportunity to be considered for parole suitability” after 15 years of incarceration.

A single SJC justice, Margot Botsford, will hear Diatchenko’s arguments today for new Parole Board rules for those convicted of murder as teens. Lawyers for Diatchenko and the Parole Board did not respond to requests for comment. Conley’s office said Diatchenko’s requests include having an appointed hearing attorney, expert defense witnesses, and the opportunity to cross-examine witnesses against him.

Conley contends, “The SJC has determined that this defendant is entitled to a parole hearing.  He shouldn’t also be afforded an unprecedented array of tactics to use at that hearing.”

Steve Brodie of Groveland, whose daughter Beth was bludgeoned to death in 1992 at age 15, told the Herald he is alarmed to learn hearings could include cross-
examination. “We don’t know where it ends,” Brodie said. Richard Baldwin, 37, who was 16 when he killed Beth Brodie, is among 61 lifers whose hearings for parole are expected to begin soon.

Personally, I do not view a defendant's request for an attorney and an opportunity to present and cross-examine witnesses at a significant sentencing proceeding to amount to a demand to "be afforded an unprecedented array of tactics."  But then again, it is easy for a lawyer and law professor like me to say that the traditional trial procedures secured for defendants by the Sixth and Fourteenth Amendments ought to be given very broad application in parole proceedings. 

The US Supreme Court has never thoroughly considered or carefully articulated exactly which traditional trial rights defendants retain or lack throughout traditional parole decision-making, though SCOTUS jurisprudence suggests that all defendants retain at least some minimal due process rights in parole proceedings.  Critically, though, these important procedural issues have not (yet) been seriously explored in the wake of the Supreme Court's recent substantive and procedural Eighth Amendment decisions in Graham and Miller concerning limits on juve LWOP sentencing. 

March 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

BRIDEZILLARegular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham.  As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first claimed that she did not mean to do it.  Then, after a federal jury trial was conducted,  but before a jury started deliberating about the charges, Graham entered a plea to second-degree murder in exchange for federal prosecutors agreeing to drop a first-degree murder charge and a count of making a false statement to authorities.

Now, as reported in this local article, headlined "Newlywed murder case unusual for federal court; sentencing Thur," it is now sentencing time. Unsurprisingly, federal prosecutors and Graham's defense team have much different views on what sentence she ought to receive for second-degree murder:

Does pushing your husband off a cliff to his death warrant serving life in prison?  Or 10 years? Or somewhere in between?  On Thursday, U.S. District Judge Donald Molloy must decide what punishment is fitting for Jordan Graham, who pushed her husband off a cliff in Glacier National Park last summer after only eight days of marriage.

After both sides had rested their case in a December trial, 22-year-old Graham pleaded guilty to second-degree murder in the death of 25-year-old Cody Johnson before the jury could enter into deliberations.

The case is relatively unusual for federal court, since accusations of murder are usually tried and sentenced in county courtrooms, but Graham pushed Johnson on federal land, said Jordan Gross, an associate professor of law at the University of Montana who teaches criminal law and criminal procedure. Federal sentencing guidelines are vague on what’s required for second-degree murder. Hence the 90-year difference in sentences the defense and prosecution are asking Molloy to hand down, Gross said.

Graham was charged with first-degree murder, a lesser included charge of second-degree murder and making false statements to law enforcement. For first-degree murder, prosecutors must prove there was intent on the defendant’s part, where intent is not required for a second-degree murder conviction.

Although Graham pleaded guilty, prosecutors rehashed in their sentencing memorandum that Johnson was found without his wedding ring or car keys and hinted at the possibility that Graham had indeed intended to kill her new husband. Graham’s defense team contends that the circumstances of the evening were a recipe for disaster and that the incident was more akin to an accident. “She pleaded guilty, but that doesn’t mean that the prosecution can’t come in and argue her sentence up to life because that’s what the statute says,” Gross said. Federal statutes also don’t stipulate a required minimum sentence.

The benefit of pleading guilty before the jury could return a verdict is that it shows Graham accepts responsibility for her actions, Gross said. “There are shades of acceptance of responsibility,” though, Gross said, adding that in Graham’s case, she didn’t spare Johnson’s family the anguish of taking the stand and reliving their pain during a trial.

Letters from family and friends in support of Graham and letters filed on behalf of the prosecution, also will play a role in Molloy’s determination — and give insight from those who know Graham and Johnson best.

Brad Blasdel, who knew Graham for several years through her family, wrote that she was quiet and shy on the surface but cold and calculating underneath and showed no emotion about Johnson’s death. “Not once did I see any sign of remorse in Jordan for killing Cody,” he wrote, asking Molloy to consider the woman’s callousness during sentencing. “She took Cody’s life with premeditation and malice; now she must give hers,” he continued.

Cyndi Blasdel called Graham a “quiet instigator” who frequently encouraged bad behavior in others from the time she was a child. After Graham and Johnson’s engagement, Graham’s behavior became increasingly erratic, to the point of murder, Blasdel said. “Jordan Graham knew what she did was wrong and knew the consequences. She needs to be held accountable. She is not a nonviolent offender. Those of us who know her are afraid and some of us still sleep with the lights on,” she wrote.

People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church and served as a mentor to other young women.

Graham’s stepfather, Steven Rutledge, wrote he feels Johnson’s death was a terrible accident. “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.”

If Molloy is lenient, Graham has the potential to become a contributing member of society, her mother, Lindele Rutledge, wrote. Her daughter has shown remorse repeatedly in letters, through phone conversations and during visitation times, Rutledge wrote. “She has never been in trouble with the law. Her only record is a couple of speeding tickets. By showing her leniency she could get a college education and become a better and useful member of society.”...

Graham also likely will address Molloy during Thursday’s hearing in U.S. District Court in Missoula. It will be her opportunity to interact with Molloy outside of the case facts, said Paul Ryan, who has practiced law in Missoula for 20 years. Her comments to the judge will allow her to personally explain why she pushed Johnson and convey if she truly accepts responsibility for her actions, Ryan said.

Johnson’s mother, Sherry Johnson, as well as several other family members, will make comments during the sentencing hearing too. “They’re usually the most emotional and they can certainly carry a lot of weight with the judge,” Ryan said. What Johnson’s family feels is appropriate punishment also will factor into the decision, as will the impact to the victim, he said. “In this case, it was fatal. There can’t be a greater impact on a person than that,” he added.

As the title of this post highlights, I think this upcoming sentencing provides an extraordinary opportunity for me to explore with students critical sentencing issues ranging from views on how offense facts beyond the offense of conviction ought to impact sentencing and whether post-offense behavior by the defendant ought to play a large role at sentencing.  

In this prior post, I noted some of the federal sentencing guideline issues that this case necessarily raises.  Specifically, the guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim."   Should that apply here?  Also, I believe federal prosecutors have calculated the guidelines to include enhancements for obstruction of justice and without any reduction for acceptance of responsibility based on the lateness of the plea.  Are those fair and proper as sentencing consideration?

I could go on and on, but I want to save some of the fun for my students in class this week.  In the meantime, though, I would love to hear from readers (especially those who are regular sentencing practitioners) about what elements of this high-profile case provide especially good teaching ideas.

Previous related posts (with lots of interesting prior comments):

March 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

SCOTUS grants cert to explore how many procedural angels can dance on a habeas pin

The snarky title of this post is my reaction to the one cert grant today by the Supreme Court in a capital case from Texas, Jennings v. Stephens [Order List available here].  Upon first seeing news of a grant in a capital case from Texas, I was hoping that the Justices might be taking up some meaty substantive death penalty issue.  

But, as the Order List explains, "petition for a writ of certiorari is granted limited to Question 4 presented by the petition." And here, as summarized via this case page at SCOTUSblog, is that question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Though I could be wrong on the fact here, I would guess that this specific federal habeas procedural issue arises maybe a couple of times each year at most. It is pretty rare that federal habeas petitioners prevail in the district court, and surely rarer still that a circuit court would on appeal thereafter ding that petitioner on a procedural issue. When there are thousands of cert petitions from defendants raising issues that could impact tens of thousands of criminal cases, I am both intrigued and annoyed that SCOTUS decides to take up a case likely to impact at most a handful of capital cases.

Of course, this issue of habeas procedure is obviously a very big deal to death row petitioner Jennings, and a number of Justices are likely troubled by how the Fifth Circuit handed this case. But would not a summary reversal be a more efficient and effective way to deal with this issue if a majority of Justices are troubled by the procedural maneuver pulled by the Fifth Circuit?

March 24, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, March 22, 2014

Florida state judge balks at 50-year proposed sentence for notable child porn downloader

As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:

A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide.  Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.

Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.

Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.

Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.

Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.

Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....

Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.

March 22, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 20, 2014

Illinois Supreme Court deems Miller ruling substantive and thus retroactive

As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:

The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....

With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling.  Minnesota, Pennsylvania and Louisiana are among the states that have refused....

“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.

The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:

As the Iowa Supreme Court recognized:  “From a broad perspective, Miller does mandate a new procedure.  Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013).  In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole.  See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013).  Since Miller declares a new substantive rule, it applies retroactively without resort to TeagueSee Schriro, 542 U.S. at 351-52 & n.4.

Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review.  Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence.  While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review.  See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.

We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity.  However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument.  See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).

March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball

I am pleased to see that my discussion of the Antwuan Ball case in this recent post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims," has now generated a pair of thoughtful posts at The Volokh Conspiracy:

Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?", which ends with this paragraph:

In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.

Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence," which concludes with these thoughts:

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.”  He then reiterated this point in Gall.  (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)

This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).

March 20, 2014 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Texas officials get hooked up by special secret (capital) drug dealer

As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:

Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.  But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.  "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.  Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.

Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....

Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence.  "This might be good stuff," he said.  "And the roads are getting very short here."

But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment.  "There are a lot of drugs, and Texas can be creative in finding some," he said.

Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1.  The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week.  That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said.  The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.

Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982.  The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....

Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.  Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents.  It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.

Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.  In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....

Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."

March 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 19, 2014

"Efficiency shouldn’t trump effectiveness in drug sentencing"

The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform.  Here is the full text of the letter as published:

As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.”  At best, the objections by some federal prosecutors to sentencing reform ring hollow.  At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.

Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial.  That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem.  If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.

The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.”  It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.

Mandatory minimums do create efficiency.  But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

March 19, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack