Thursday, November 02, 2017

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Tuesday, October 31, 2017

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, October 30, 2017

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (24)

Sunday, October 29, 2017

"A Culture that is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases"

The title of this post is the title of this notable new empirical paper authored by Jon Gould and Kenneth Leon. Here is the abstract:

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence.  Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory.  This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence.

Using frequentist and Bayesian methods — supplemented with expert interviews — we empirically assess the processes determining the total allocation of defense resources in federal death penalty trials at the peak of the federal death penalty — between 1998 and 2004. Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence.  Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.  Ultimately, we argue for a reconceptualization of extralegal influences and the relationship between local legal culture and capital case outcomes.

October 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, October 27, 2017

Expressing concerns about how risk assessment algorithms learn

This New York Times op-ed, headlined "When an Algorithm Helps Send You to Prison," is authored by Ellora Thadaney Israni, a law student and former software engineer at Facebook. In the course of covering now familiar ground in the debate over the use of risk assessment tools at sentencing, the piece adds some points about how these tools may evolve and soundly urges more transparency in their creation and development:

Machine learning algorithms often work on a feedback loop.  If they are not constantly retrained, they “lean in” to the assumed correctness of their initial determinations, drifting away from both reality and fairness.  As a former Silicon Valley software engineer, I saw this time and again: Google’s image classification algorithms mistakenly labeling black people as gorillas, or Microsoft’s Twitter bot immediately becoming a “racist jerk.”...

With transparency and accountability, algorithms in the criminal justice system do have potential for good.  For example, New Jersey used a risk assessment program known as the Public Safety Assessment to reform its bail system this year, leading to a 16 percent decrease in its pre-trial jail population.  The same algorithm helped Lucas County, Ohio double the number of pre-trial releases without bail, and cut pre-trial crime in half.  But that program’s functioning was detailed in a published report, allowing those with subject-matter expertise to confirm that morally troubling (and constitutionally impermissible) variables — such as race, gender and variables that could proxy the two (for example, ZIP code) — were not being considered.

For now, the only people with visibility into COMPAS’s functioning are its programmers, who are in many ways less equipped than judges to deliver justice.  Judges have legal training, are bound by ethical oaths, and must account for not only their decisions but also their reasoning in published opinions.  Programmers lack each of these safeguards. Computers may be intelligent, but they are not wise.  Everything they know, we taught them, and we taught them our biases.  They are not going to un-learn them without transparency and corrective action by humans.

October 27, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (1)

"How to Assess Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders's Comment"

The title of this post is the title of this new paper by John Mills now available via SSRN. As the title indicates, this piece is a response to a recent article by Chad Flanders, blogged here, about capital sentencing procedures. Here is the abstract:

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope.  To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst.  Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point.  This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract.  This response focuses on Arizona’s capital sentencing regime to illustrate the importance of understanding the real world operation of the law and discusses the well-established basis in law and policy for relying on empirical studies in support of narrowing claims.

Prior related post:

October 27, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:

Summary

Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, October 24, 2017

Can a defendant be given two maxed-out consecutive manslaughter sentences for killing one person?

The puzzling question in the title of this post would appear to be the remarkable issue that is now going to be considered by the top court in the Old Dominion State according to this local story headlined "Virginia Supreme Court will rule on Gregg sentencing."  Here is the press report that I am still trying to wrap my mind around:

Almost two years after a Fauquier jury found a Marshall man guilty of manslaughter, the legal debate over his prison sentence will go to the state’s highest court. The Virginia Supreme Court announced Friday that it will hear the prosecution’s appeal of a decision that would void one of two homicide convictions of Carroll E. “Tootie” Gregg Jr. in December 2015.

The circuit court jury recommended a 10-year sentence on each.  Judge Herman A. Whisenant Jr. exercised a state code provision that allowed him to add three years on each conviction, which he suspended. Mr. Gregg got a 26-year prison sentence, with six years suspended.

He shot and killed Junior Jordan Montero Sanchez, 23, just after midnight June 6, 2014. Mr. Sanchez and a towing company coworker had gone to Mr. Gregg’s Conde Road apartment to repossess a pickup truck for delinquent loan payments.

But, Warrenton defense attorneys Blair Howard and T. Brooke Howard II immediately objected to the pair of manslaughter sentences, contending that the U.S and Virginia constitutions protect individuals from being punished twice for the same crime.

A Virginia Court of Appeals panel last December ruled that the dual convictions — on two involuntary manslaughter charges, one of them for “unlawfully shooting at an occupied vehicle wherein death resulted” — constituted double jeopardy. The panel sent the case back to Fauquier County Circuit Court, where the prosecution would choose which conviction to apply.

But, the state attorney general’s office appealed that decision to the Supreme Court, which last week agreed to take the case.... “It will indeed be interesting to see the outcome in the Virginia Supreme Court,” Fauquier County Commonwealth’s Attorney James P. Fisher said.

The attorney general’s office handles most appeals of criminal cases that start with local prosecutors. Mr. Fisher has argued that the vehicle shooting conviction has different elements, even though state code labels it “involuntary manslaughter.”

The Virginia Court of Appeals ruling in this case is available at this link and it strikes me as eminently sensible.  Moreover, it has never really dawned on me to imagine that prosecutors could try to ramp up the punishment for a single killing by seeking multiple convictions and multiple consecutive sentences for every different type of possible homicide that the single killing might constitute. (For example, here in Ohio, we have nine different types of homicide and a drunk driver who kills one person might readily be found guilty of six different types of homicide.  I could never imagine a prosecutor looking to convict such a drunk driver of six different counts and asking for six max sentences to run consecutively on each count for a single killing.)

Perhaps I am missing something when I suggest it seems crazy for a defendant to be sentenced to two maxed-out consecutive manslaughter sentences for killing one person.  The local prosecutor and the sentencing judge obviously did not think this kind of doubling up was crazy.  Moreover, it would seem that Virginia Attorney General's office believes there is a legally defensible basis for pursuing a state Supreme Court appeal in order to preserve the double-max sentence imposed by the sentencing court. 

I would be grateful to hear in the comments if and how anyone can make the principled case for a double-max manslaughter sentence in a case involving only a single killing.

October 24, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (26)

Many (but not all) Massachusetts DAs come out against eliminating certain drug mandatory minimums and other proposed reforms

This Boston Globe article, headlined "In harsh letter, DAs pan Senate’s criminal justice proposal," reports on a notable letter signed by most of the District Attorneys of Massachusetts to oppose a set of state criminal justice reform proposals. Here is the start of the article (which includes a link to the letter to legislators):

In a blistering public rebuke, nine of Massachusetts’ 11 district attorneys came out Monday against major parts of the state Senate’s sweeping criminal justice bill, which is aimed at reducing the number of people caught in the system.  In a six-page letter that comes days before the chamber is set to take up the legislation, top law enforcement officials railed against what is a Senate priority.

Although they praise some aspects of the bill, overall it “undermines the cause and pursuit of fair and equal justice for all, largely ignores the interests of victims of crime, and puts at risk the undeniable strides and unparalleled success of Massachusetts’ approach to public safety and criminal justice for at least the last 25 years,” the DAs wrote.

The letter also marks a break among the top prosecutors, with the signatures of Northwestern District Attorney David E. Sullivan and Middlesex District Attorney Marian T. Ryan — who is the chief law enforcement official of the state’s most populous county — notably absent.

The nine DAs are against eliminating mandatory minimum sentences for certain drug crimes such as trafficking up to 100 grams of cocaine — one proposal in the legislation scheduled for a Thursday vote in the Senate. And they expressed particularly vociferous opposition to the part of the bill that would make those changes retroactive, allowing hundreds of drug dealers the opportunity to get out of prison early.   “Where exactly are the residents eager for violent drug traffickers to be returned to their neighborhoods?” they wrote. 

Advocates and senators say mandatory minimums are a failed tactic from the war on drugs, one that has unnecessarily ensnared generations of people, particularly from communities of color, in the criminal justice system. And making the repeal of certain drug mandatory minimums retroactive is important for equity, they say.

The DAs energetically oppose the provision that would raise the age of criminal majority to 19, meaning all but the most serious offenses committed by 18-year-olds would likely be adjudicated confidentially in front of a juvenile court judge.

Advocates and Senate leaders say scientific research shows young people’s brains keep maturing into their 20s, and it is appropriate for the law to acknowledge that evolution. They say it’s just common sense to treat all high school kids the same way, instead of punishing an 18-year-old much more harshly than a 17-year-old for the same crime.

But the DAs wrote that “adopting a law that enables anyone to declare that ‘I am not responsible for my actions, my brain is!’ is something no rational parent would accept, and creates a slippery slope.”

The DAs vehemently oppose rewriting the state’s statutory rape law, which currently makes sex with anyone under 16 against the law. The bill would legalize consensual sex between teens close in age — an 18-year-old and a 15-year-old, or a 15-year-old and a 13-year-old, for example. That provision is “both unnecessary and dangerous, especially to girls and young women,” the nine DAs wrote.  But advocates say a so-called Romeo-and-Juliet law is sensible, and criminalizing the sexual contact young people inevitably have with each other is not the best way to respond to it.

October 24, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, October 23, 2017

Reviewing publicity's role in federal sentencing decision-making

This new Forbes piece by Brian Jacobs, headlined "The Role of Publicity in Sentencing," reviews how a case's high-profile nature can play a role in a defendant's federal sentencing. Here are excerpts concluding with the author's closing criticism of "any substantial reliance on publicity as a sentencing factor":

Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed?  The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.”  And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment.

The ability of courts to take publicity into account at sentencing traces back to Section 3553(a) of Title 18, United States Code, which provides a list of factors that district courts are required to consider in imposing sentence, including “the nature and circumstances of the offense and the history and characteristics of the defendant.”  One of the factors district courts must consider is “the need for the sentence imposed— to afford adequate deterrence to criminal conduct.”...

The extent of publicity a case has received and will continue to receive naturally figures into the analysis of whether a given sentence will further the goal of general deterrence.  As one commentator wrote some time ago, “[i]f a case has for some reason attracted great publicity, a severe sentence could be expected to have great deterrent effect.  If, on the other hand, the publicity is minimal and the sentence probably will be known only to the defendant himself and the officials involved with the case, the judge could let the offender off with a light sentence without sacrificing any general preventive effects.”

As evidenced by some recent cases, courts have generally followed through on this reasoning and have considered the extent of a case’s publicity as one factor weighing in favor of higher sentences.  In Ross Ulbricht’s appeal of his conviction for crimes “associated with his creation and operation of an online marketplace known as Silk Road,” the Second Circuit Court of Appeals condoned the district court’s consideration of the extent of the case’s publicity as one factor justifying the life sentence imposed. Specifically, the Second Circuit approved the district court’s reference to the general deterrence that would result from the “unusually large amount of public interest” in the case.  (Ironically, it appears that the Ulbricht’s life sentence and the attendant publicity, far from deterring crime, “actually boosted dark web drug sales.”)

By the same token, in sentencing former congressman Anthony Weiner to 21 months’ imprisonment for transferring obscene materials to a minor, U.S. District Judge Denise L. Cote made express reference to Mr. Weiner’s high profile: “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said.  Judge Cote elaborated that, “[g]eneral deterrence is a very significant factor in this sentence.”...

But even as courts are required to consider general deterrence, the consideration given to a case’s publicity, in particular, should be minimal.  The use of general deterrence as a sentencing factor is inherently unfair to an individual defendant, to the extent that the individual defendant’s case is used as a “means for the public good.”  To base a defendant’s sentence on the extent of the publicity a case has received or will receive only exacerbates this unfairness, as notoriety has even less to do with the individual defendant’s case, and more to do with the whims of the press corps and the Department of Justice’s media operation.  In the long run, any substantial reliance on publicity as a sentencing factor, rather than deterring crime, seems just as likely to increase the risk that people will, as one commentator wrote, “find the system unjust” in violation of “the principle of equality before the law.”

October 23, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"In Defense of Risk-Assessment Tools"

The title of this post is the headline of this notable new Marshall Project commentary authored by Adam Neufeld. its subheadline highlights its main theme: " Algorithms can help the criminal justice system, but only alongside thoughtful humans." And here is an excerpt:

It may seem weird to rely on an impersonal algorithm to predict a person’s behavior given the enormous stakes.  But the gravity of the outcome — in cost, crime, and wasted human potential — is exactly why we should use an algorithm.

Studies suggest that well-designed algorithms may be far more accurate than a judge alone.  For example, a recent study of New York City’s pretrial decisions found that an algorithm’s assessment of risk would far outperform judges’ track record.  If the city relied on the algorithm, an estimated 42 percent of detainees could be set free without any increase in people skipping trial or committing crimes pretrial, the study found.

But we are far from where we need to be in the use of these algorithms in the criminal justice system.  Most jurisdictions don’t use any algorithms, relying instead on each individual judge or decisionmaker to make critical decisions based on their personal experience, intuition, and whatever they decide is relevant. Jurisdictions that do use algorithms only use them in a few areas, in some instances with algorithms that have not been critically evaluated and implemented.

Used appropriately, algorithms could help in many more areas, from predicting who needs confinement in a maximum security prison to who needs support resources after release from prison.

However, with great (algorithmic) power comes great (human) responsibility.  First, before racing to adopt an algorithm, jurisdictions need to have the foundational conversation with relevant stakeholders about what their goals are in adopting an algorithm.  Certain goals will be consistent across jurisdictions, such as reducing the number of people who skip trial, but other goals will be specific to a jurisdiction and cannot just be delegated to the algorithm’s creator....

Many criticisms of algorithms to date point out where they fall short.  However, an algorithm should be evaluated not just against some perfect ideal, but also against the very imperfect status quo.  Preliminary studies suggest these tools improve accuracy, but the research base must be expanded.  Only well-designed evaluations will tell us when algorithms will improve fairness and accuracy in the criminal justice system.

Public officials have a social responsibility to pursue the opportunities that algorithms present, but to do so thoughtfully and rigorously.  That is a hard balance, but the stakes are too high not to try.

A few (of many) prior related posts:

October 23, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (3)

Sunday, October 22, 2017

Should we call it the Sessions effect?: "enthusiastic" federal prosecutors operating at "full throttle" in the Southern District of Ohio

My local Columbus Dispatch has this fascinating new article highlighting an uptick in federal prosecution in the Southern District of Ohio.  The piece is headlined "Surge in prisoners prompts federal court to contract with northwest Ohio jail," and here are excerpts (with a few points highlighted):

Benjamin C. Glassman is costing taxpayers more money, and he’s OK with that. Glassman, the U.S. attorney for the Southern District of Ohio, is reaching far and wide — very far, in some cases — to fight crime that could hurt Ohioans.

He persuaded the U.S. Drug Enforcement Administration to deposit four Ecuadorean cocaine traffickers caught off the Galapagos Islands for prosecution on his turf in Columbus. And members of the multinational gang MS-13 were charged in September with extorting money from Columbus businesses and laundering it back to the gang’s leadership in El Salvador.

The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. 

Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography.

To prevent overtaxing the Franklin and Delaware County jails that hold federal prisoners, Peter C. Tobin, the U.S. marshal for the 48-county Southern District, recently contracted with a regional jail in Williams County, 150 miles northwest of Columbus, to hold some defendants.  So far, 30 defendants have been sent to the Corrections Center of Northwest Ohio near Bryan.  That jail is charging $90 a day per federal inmate, about $25 more than the local jails.

Other federal court districts are having similar problems housing the influx of defendants, Sargus said.  The largest districts, such as New York City and Los Angeles, have their own holding facilities.

An Obama administration appointee last year, Glassman swears he’s not padding his crime-fighting resume because President Donald Trump could replace him at a moment’s notice. Ohio’s U.S. senators have recommended Greg Hartmann, an attorney and former Hamilton County commissioner, to replace Glassman. “We just want to reach out as far as we can and as far as we need to go to stop crime that is hurting people in this district,” Glassman said. “I sincerely believe people in Russia can hurt us, people in China can hurt us here.”

He spoke enviously of fellow prosecutors in North Dakota who this month “beat us to indicting” two men in China with selling fentanyl over the “dark web’ that has been tied to deadly overdoses. It was unclear whether Chinese officials have taken action against the suspects.

“We have violent crime initiatives in Cincinnati, and now Columbus, that are successfully bringing more violent crime prosecutions,” he said. Glassman’s office works closely with state and local law enforcement, counting on street cops to identify the “small number of people disproportionately responsible for a large number of violence.”  Suspects are charged in state or federal court depending on which nets prosecutors the best results, meaning guilty pleas and stiff prison sentences....

Glassman said his office is operating at “full throttle, with a lot of hardworking, really enthusiastic prosecutors.”  Individual assistant U.S. attorneys specialize in handling violent crime, drugs, illegal immigration, child pornography, tax and fraud cases.  Where only the top offenders in a drug ring were usually charged, now it’s not uncommon for cases to include a list of 15 or so defendants with even the most minor players. “We are looking to dismantle entire distribution organizations,” he said.

I find fascinating that even with a violent crime initiative and directions from Attorney General Sessions to focus on violent crime, this accounting of on-going federal prosecutions indicates that less than 15% of the current caseload (and maybe less than 10%) involves violent crimes (43 out of the 304 noted above, or maybe 43 out of the full 483).  Meanwhile, nearly half or perhaps even more than half of all the cases are drug cases, and now apparently even the most minor players in a drug ring are being subject to federal prosecution — no doubt in part because guilty pleas and stiff prison sentences are more common when drug charges are brought in the federal system.

I am inclined to call much of this a "Sessions effect" because the signals from the top of the current Justice Department would seem to be urging more and more federal prosecutions across the board (while also urging tougher approaches to sentencing).  I suspect it may be still some months before we see the full impact of these dynamics in federal sentencing statistics, but I also suspect I will be talking more about the Sessions effect in the months and years ahead.

October 22, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, October 20, 2017

Federal judge rules that Prez pardon for Joe Arpaio does not call for vacating his contempt conviction

As reported in this Politico piece, a "federal judge has ruled that President Donald Trump's pardon of former Arizona Sheriff Joe Arpaio ends his prosecution for criminal contempt of court, but does not wipe out the guilty verdict she returned or any other rulings in the case."   The full (and short) ruling is available at this link, and here is more about it:

In her order Thursday, Phoenix-based U.S. District Court Judge Susan Bolton rejected arguments from Arpaio's lawyers and Justice Department prosecutors that the longtime Maricopa County sheriff was entitled to have all rulings in the case vacated, including the guilty verdict the judge delivered in July after a five-day trial.

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping," Bolton wrote, quoting an appeals court ruling. "To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, 'revise the historical facts' of this case."

Arpaio, known for his tough stance against illegal immigration and for humiliating treatment of prisoners, was charged with contempt for defying another federal judge's order aimed at preventing ethnic profiling of Latinos. Trump pardoned the 85-year-old Arpaio in August while he was awaiting sentencing. The official White House statement stressed Arpaio's history of public service, but the president indicated in earlier remarks that he considered the ex-sheriff's conviction unfair because he was found guilty "for doing his job." Trump also said Arpaio should have received a jury trial, something courts have said is not required if no penalty of more than a year in jail is sought.

Arpaio's attorneys filed an appeal Thursday evening that will take the issue to the San Francisco-based 9th Circuit Court of Appeals. "We will challenge that order," Arpaio lawyer Jack Wilenchik told POLITICO shortly after the judge's ruling was handed down. He said Bolton had jumbled the facts regarding a key precedent: the case of a Tyson Foods lobbyist who was pardoned by President Bill Clinton after being convicted of giving illegal gifts to Agriculture Secretary Mike Espy.

The battle over the guilty verdict and other rulings is largely symbolic since the prosecution, the defense and the judge all appear to agree Arpaio's prosecution is over and he cannot be punished for the conduct that led to the case. Arpaio's attorneys argue it is unfair for the verdict to remain on the book since the pardon effectively wipes out Arpaio's ability to appeal that decision. However, some ethics-in-government groups and Democratic lawmakers urged the judge to reject the pardon altogether as an unconstitutional intrusion by the executive branch into the judiciary branch's ability to ensure that its orders are enforced.

A few prior related posts:

October 20, 2017 in Clemency and Pardons, Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"State Criminal Appeals Revealed"

The title of this post is the title of this interesting new empirical paper available via SSRN and authored by Michael Heise, Nancy King and Nicole Heise. Here is the abstract

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”).  The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.

We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review.  Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review.  By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes.

Our findings imply that defense appellate success rates may have declined in recent decades.  In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others.  Also notable is the absence of a relationship between defense success and factors including most crime types and claims raised, the court’s workload, and, for all but one model, whether the appellate judges were selected by election. 

October 20, 2017 in Detailed sentencing data, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 19, 2017

Texas serial killer gets prosecutors to seek at obtain a last-minute delay of execution

Texas had plans to execute a serial killer last night, but prosecutors sought and obtained a delay apparently because the killer was scheming to admit to another murder.  This local article, remarkably headlined "Potential new murder confession delays Texas serial killer's execution," reports on this remarkable turn of events:

The execution of Houston serial killer Anthony Shore was rescheduled hours away from his pending death after officials began to worry he would confess to another murder. Shore, 55, was set for execution after 6 p.m. Wednesday, but the district attorney from Montgomery County sent a plea to Gov. Greg Abbott and Harris County District Attorney Kim Ogg, asking for more time to look into rumors that Shore would confess to a murder in which another death row inmate was convicted.

"This office is in possession of evidence suggesting that Shore has conspired with death row inmate Larry Ray Swearingen and intends to falsely claim responsibility for the capital murder of Melissa Trotter — the crime for which Swearingen is currently scheduled to be executed on November 16, 2017," Montgomery County DA Brett Ligon said in his letter to Abbott. Ogg filed a motion to withdraw Shore's execution date after receiving Ligon's request. It has been reset for Jan. 18.  She said in a statement that Shore’s execution is still “inevitable.”...

In his letter, Ligon explained that a folder containing items on the Trotter murder were found in Shore’s cell this July. When his office discovered this in September, he called Shore’s lawyer, Knox Nunnally, who said Shore would answer questions from the Harris County District Attorney’s Office regarding other murders on the condition that his written responses would only be revealed by his lawyer after his execution.

A Montgomery County investigator also interviewed a death row visitor, who said Shore told her he murdered Trotter and would not let Swearingen be executed for it, Ligon wrote. “We remain absolutely certain of Swearingen’s guilt of Melissa Trotter’s murder, but permitting Shore to claim responsibility for that crime after his execution would leave a cloud over the judicial proceedings in Swearingen’s case,” he wrote.

Shore was known in Houston as the “Tourniquet Killer.” In 2003, he confessed to four murders of young women and girls in the 1980s and 1990s, strangling them with rope or cord and leaving their unclothed bodies behind buildings or in a field.

Swearingen was convicted in the death of 19-year-old Trotter, after her decomposing body was found in a forest nearly a month after she was last seen with Swearingen, according to court documents. He has insisted on his innocence in the murder.

In Texas, there is usually sufficient will to go forward with executions so that the folks there can find a way. But this story leads me to wonder if a serial killer might at least partially succeed with a scheme to try to kill two executions with one stony confessions.

October 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, October 17, 2017

Busting the "myth of the progressive prosecutor"

Much advocacy and debate over modern criminal justice reform has come to give particular attention to the role of prosecutors.  In turn, it sometimes seems that some reform-minded folks seem to believe or suggest that getting the right persons to serve as prosecutors can be a kind of modern magic criminal reform elixir.   Against that backdrop, I found this new New York Times op-ed refreshing and important.  It is headlined "Cyrus Vance and the Myth of the Progressive Prosecutor," and here are excerpts:

[T]he Manhattan district attorney, Cyrus Vance Jr., ... is considered one of America’s most progressive prosecutors and has the accolades to prove it.  In 2015, he helped create the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice.  Two years earlier, Attorney General Eric Holder gave him an award for having developed a partnership between local youths and law enforcement aimed at reducing violence.

Sure, he often says the right thing, as when he told New York Law School’s graduating class in 2015 that he had recognized racism in the criminal justice system “long before the term ‘mass incarceration’ entered the general conversation,” or when he wrote in the black-owned Amsterdam News last month that he has helped to reduce “unnecessary contact with the criminal justice system” among Manhattanites.

However, like many prosecutors across the country who get credit for changing the game while continuing draconian practices, Mr. Vance simply isn’t the reformer he paints himself as.  Look at the data. Manhattan holds less than 20 percent of the city’s population, but on an average day, almost 40 percent of Rikers Island inmates are from the borough.  This disparity has been attributed in part to his office’s zealous prosecution of misdemeanors.  As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City.

And despite lamenting racism in the criminal justice system, Mr. Vance perpetuates worrisome racial disparities.  A 2014 Vera Institute of Justice study found that black and Latino defendants prosecuted by Mr. Vance’s office were more likely to be detained at booking, compared with similarly situated white defendants.  And last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did.

Nor is Mr. Vance the only faux reformer.  The New Orleans district attorney, Leon Cannizzaro, claims that his office “has worked aggressively to reform New Orleans’s criminal justice system.”  But his actions indicate that he values convictions over his community.  He has locked up rape victims who refused to testify against their assailants and has served fake subpoenas to pressure witnesses to talk. Mr. Cannizzaro defended a sentence in which a 17-year-old was sent to prison for 99 years for an armed car robbery, even though no one was injured during the crime.  His office tried to sentence a man to 20 years in prison for stealing $31 worth of candy.

The Los Angeles district attorney, Jackie Lacey, is a Democrat who has benefited from the public’s perception that she is a reformer.  This is something she has fed herself, bragging to a Los Angeles Sentinel reporter that she has read “The New Jim Crow” by Michelle Alexander and has seen Ava DuVernay’s documentary “13,” about the connection between slavery and mass incarceration.  But Ms. Lacey’s values have consistently lagged behind those of her constituency.  In ballot initiatives, Los Angeles County residents supported shorter sentences for low-level and nonviolent property and drug crimes and wanted to legalize recreational marijuana use for adults. Ms. Lacey opposed both. And although the county voted in favor of abolishing the death penalty, she continues to support it. Last year there were just 31 death sentences nationwide. Ms. Lacey’s office secured four of them....

So it’s especially frustrating that many of those who are praised as change-makers are at best making bite-size improvements.  And because they say the right things, the public gives them a pass: Mr. Vance is running unopposed for a third term, and Ms. Lacey also ran unopposed in her last election.

The progressive bombast is meaningless if prosecutors continue to promote the same harsh practices behind the scenes. Instead, voters must look closely at their policies and hold them to high and specific standards.  We should ask: Are prosecutors opposing new mandatory minimum sentences during legislative debates? Have they declined to request cash bail in a vast majority of cases? Are they keeping children out of adult court and refusing to seek life-without-parole sentences for them?

Over 1,000 prosecutors will be up for election next year in places like Dallas, San Diego, Seattle, Oakland, Calif., and Charlotte, N.C. Voters ought to make sure the people who win these crucial races are actual criminal justice reformers, not just people who say they are.

Over at Simple Justice, Scott Greenfield here also gives attention to this notable op-ed by calling out some more current and former prosecutors for their questionable reform credentials. He also adds these sharp comments that reflect my view that reforming the law is even more critical than reforming who applies the law (though that matters, too):

[E]ven the [progressive prosecutors] who aren’t taking bribes, who can quote Maya Angelou from memory, are still prosecutors. To some extent, the conflict is inherent in the job; prosecutors prosecute based on law. They are not the avenging angels of social justice, but just avenging angels.

The irony of calling for more criminalization in one place (say, revenge porn) while bemoaning criminalization in others (say, marijuana) eludes many. But over-criminalization only seems to register in progressive minds based on fashion trends, forgetting that the crimes they hate today were once just as fashionable as the crimes they love today.

And this is where they fail to grasp how their cries for “justice” make little sense, since “justice” is mostly a matter of whose sad story prevails, the accused or the victim, at any given moment. Ask any victim about “justice” and there is a good chance their foremost concern won’t be educational opportunities in poor urban schools.

But what Duffy makes clear is that there are real ways in which prosecutors can exercise their authority, their discretion, to bring reform to their jobs, by eliminating false confessions, suggestive identifications, Brady violations, junk science, needless bail, abuse of power, covering for killer cops and the big one, not going for death.

October 17, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, October 16, 2017

SCOTUS grants cert on three criminal procedure issues

Before taking a break for the next two weeks, the US Supreme Court this morning issued this new order list with grants of certiorari in four new cases.  There of these cases involve criminal procedure matters, and here are brief accounts via SCOTUSblog (with links thereto):

Currier v. Virginia:  Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

United States v. Microsoft Corp.:  Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Dahda v. United States:  Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.

None of these cases get my sentencing blood racing, and the most interesting aspect of the order list for hard-core sentencing fans might be a short opinion by Justice Sotomayor (joined by Justices Ginsburg and Breyer) dissenting from the denial of certiorari in a couple of Florida capital cases in which defendants argued "that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory."  

October 16, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, October 15, 2017

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, October 13, 2017

"Financing the War on Drugs: The Impact of Law Enforcement Grants on Racial Disparities in Drug Arrests"

The title of this post is the title of this notable paper authored by Robynn Cox and Jamein Cunningham that I just noticed on SSRN.  Here is the abstract:

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

October 13, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Just a handful of headlines from the various front-lines of the opioid epidemic

I could readily fill this blog multiple times a day with tales of the opioid epidemic given the size and reach of the problem and the attention it is getting from many quarters.  In my view, the epidemic is, first and foremost, a public health issue.  But, as I say often on in this space and elsewhere, every major issues of public policy is a criminal justice/sentencing issue in some way.  These recent stories/headlined highlight these realities in various ways: 

October 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

"The Federal Rules of Inmate Appeals"

The title of this post is the title of this new paper by Catherine Struve now available via SSRN. Here is its abstract:

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically.  This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. 

In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals.  And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals.

In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities -- and underscores the salience of local court practices and institutional partnerships.

October 13, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, October 11, 2017

"Is Having Too Many Aggravating Factors the Same as Having None at All?: A Comment on the Hidalgo Cert. Petition"

The title of this post is the title of this short commentary authored by Chad Flanders that a helpful reader alerted me to.  Here is a paragraph from the introduction:

[This] paper proceeds in three short parts.  The first part sets out the argument in the Hidalgo petition and explains its claim that having too many aggravating factors is as ineffective as having no aggravating factors.  The second part provides a straightforward critique of the Hidalgo argument along the lines detailed above — that the fact that aggravating factors may cover a large number of actual murders does not say much (indeed, practically nothing in the abstract) about whether those aggravating factors “narrow” the class of the death eligible.  In the third part, I suggest that the “multiple aggravators” argument is in essence a version of the original worry about broad and amorphous aggravating factors.  But this critique means analyzing how aggravators work (individually and together) as a conceptual matter, rather than analyzing whether all murders committed in the state happen to fit under one of the aggravating factors.

October 11, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this notable new paper authored by Kristine Huskey and now available via SSRN. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.  These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service.  A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

October 11, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Judge Kozinski, in dissent, laments the "cruel and expensive hoax" of the death penalty in California

A divided Ninth Circuit panel issued an extended opinion yesterday in Kirkpatrick v. Chappell, No. 14-99001 (9th Cir. Oct. 10, 2017) (available here), that keeps alive a habeas claim that of a California murderer trying to stay alive decades after being sentenced to death for a double murder committed in 1983. The bulk of the ruling, with a majority ruling by Judge Reinhardt and a dissent by Judge Kozinski, concerns the intricacies of appellate and habeas procedure. But the last four pages of Judge Kozinski's dissent are what make the opinion blog-worthy, and here is a taste from its start and end (without the copious cites):

But none of this matters because California doesn’t have a death penalty.  Sure, there’s a death row in California — the biggest in the Western Hemisphere. But there have been only thirteen executions since 1976, the most recent over ten years ago.  Death row inmates in California are far more likely to die from natural causes or suicide than execution....

Meanwhile, the people of California labor under the delusion that they live in a death penalty state.  They may want capital punishment to save innocent lives by deterring murders.  But executions must actually be carried out if they’re to have any deterrent effect.  Maybe death penalty supporters believe in just retribution; that goal, too, is frustrated if there’s no active execution chamber.  Or perhaps the point is closure for victims’ families, but these are surely false hopes.  Kirkpatrick murdered Rose Falconio’s sixteen-year-old son more than thirty years ago, and her finality is nowhere near.  If the death penalty is to serve whatever purpose its proponents envision, it must actually be carried out. A phantom death penalty is a cruel and expensive hoax.

Which is why it doesn’t matter what we hold today.  One way or the other, Kirkpatrick will go on to live a long life “driv[ing] everybody else crazy,” while copious tax dollars are spent litigating his claims.  And my colleagues and I will continue to waste countless hours disputing obscure points of law that have no relevance to the heinous crimes for which Kirkpatrick and his 746 housemates continue to evade their lawful punishment.  It’s as if we’re all performers in a Gilbert and Sullivan operetta.  We make exaggerated gestures and generate much fanfare. But in the end it amounts to nothing.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Monday, October 09, 2017

Reviewing the backstory of the Supreme Court's recent capital cert grant

As noted in this post a couple of weeks ago, the Supreme Court recently added a capital case to its docket. Adam Liptak's latest New York Times "Sidebar" column is focused on that new case.  This piece, headlined "Facing the Death Penalty With a Disloyal Lawyer," includes these passages:

Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer paid him a visit.  It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse.  Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent. Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.

The lawyer, Larry English, said he had a different strategy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled in a sworn statement.  “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.”...

Conceding guilt in a capital case is sometimes the right play.  Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects.

Mr. McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. There was also reason to think that Mr. McCoy’s belief in his innocence was both earnest and delusional.

There was no ambiguity in Mr. McCoy’s position, Mr. English recalled. “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down. “Mr. English is your attorney, and he will be representing you,” the judge said....

During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.” Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”

“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

Whatever its wisdom, Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him. “Given the circumstances of this crime and the overwhelming evidence incriminating the defendant,” the court said, “admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.

That is the question in the new case, McCoy v. Louisiana, No. 16-8255.  The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.

In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”

Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.” Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

October 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability"

The title of this post is the title of this notable new paper authored by Christopher Slobogin. Even more than the title, the paper's abstract suggests it is a must-read for sentencing fans:

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy.  At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein.  It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.  It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 9, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, October 06, 2017

Nearly 35 years after his double murder, Florida executes Michael Lambrix despite non-unanimous jury death recommendations

As reported in this local article, "Florida executed an inmate Thursday who was convicted of killing two people after a night of drinking decades ago."  Here is part of the extended backstory:

Michael Lambrix, 57, died by lethal injection at 10:10 p.m. at Florida State Prison in Bradford County. For his final words, Lambrix said, “I wish to say the Lord's Prayer.” He recited the words, ending on the line “deliver us from evil,” his voice breaking slightly at times.

When he finished and the drug cocktail began flowing through his veins, Lambrix's chest heaved and his lips fluttered. This continued for about five minutes, until his lips and eyelids turned silver-blue and he lay motionless. A doctor checked his chest with a stethoscope and shined a light in both of his eyes before pronouncing him dead.

Lambrix was the second inmate put to death by the state since it restarted executions in August. Before then, the state had stopped all executions for months after a Supreme Court ruling that found Florida's method of sentencing people to death was unconstitutional. In response, the state Legislature passed a new law requiring death sentences to have a unanimous jury vote.

Lambrix's attorney, William Hennis, argued in an appeal to the nation's high court that because his client's jury recommendations for death were not unanimous — the juries in his two trials voted 8-4 and 10-2 for death — they should be thrown out.  The Florida Supreme Court has ruled that Lambrix's case is too old to qualify for relief from the new sentencing system. The U.S. Supreme Court on Thursday night denied Lambrix's last-ditch appeal.

Lambrix was convicted of killing Clarence Moore and Aleisha Bryant in 1983 after a long night of partying in a small central Florida town, Labelle, about 30 miles (50 kilometers) northeast of Fort Meyers. Lambrix said he was innocent.

He and his roommate, Frances Smith, had met the victims at a bar, and returned to their trailer to eat spaghetti and continue the party, prosecutors said.  At some point after returning to the trailer, Lambrix asked Moore to go outside. He returned about 20 minutes later and asked Bryant to come out as well, according to Smith's testimony. Smith testified at trial that Lambrix returned to the trailer alone after the killings, his clothes covered in blood.  The two finished the spaghetti, buried the two bodies and then washed up, according to Smith's testimony cited in court documents.

Prosecutors said Lambrix choked Bryant, and used a tire iron to kill Moore. Investigators found the bodies, the tire iron and the bloody shirt.

Lambrix has claimed in previous appeals that it was Moore who killed Bryant, and that he killed Moore only in self-defense. “It won't be an execution,” he told reporters in an interview at the prison Tuesday, according to the Tampa Bay Times. “It's going to be an act of cold-blooded murder.”

Lambrix's first trial ended in a hung jury. The jury in the second trial found him guilty of both murders, and a majority of jurors recommended death.

He was originally scheduled to be executed in 2016, but that was postponed after the U.S. Supreme Court's ruling in a case called Hurst v. Florida, which found Florida's system for sentencing people to death was unconstitutional because it gave too much power to judges, instead of juries. Florida's Supreme Court has ruled that the new death sentencing system only applies to cases back to 2002.

October 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Thursday, October 05, 2017

"Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"

The title of this post is the headline of this notable new Wall Street Journal article which is primarily focused on the Supreme Court oral argument yesterday in Class v. US.  Because Class is a quirky case dealing with appeal rights and because no formal opinions have been issued this Term for Justice Gorsuch to join (and because Justice Gorsuch also voted on Wednesday to vacate an injunction protecting from execution a death row defendant in Alabama), I think this WSJ headline is a bit overblown and perhaps even misleading.  But I still consider the headline revealing, as is its account of SCOTUS argument which prompted it.  Here are excerpts:

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.” Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked. “No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment — but not that those actions necessarily are illegal. “You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

A few prior related posts:

October 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Tuesday, October 03, 2017

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

October 3, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Monday, October 02, 2017

"Plea Bargains Are a Travesty. There's Another Way."

I just noticed this recent Megan McArdle commentary at Bloomberg View which is summarized by its subheadline: "Better to apply fewer laws more consistently than to continue the U.S.’s current 'randomized draconianism'." Here are excerpts:

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle.  So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial....

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial.  We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system.  Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence.  Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great.  And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice.

Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.  We should do these things.  Unfortunately, they won’t be enough.

While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime.  We’re not going to decriminalize theft or assault or robbery, nor should we.  If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime....

Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly.  Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.”  This is a book about how we can police and punish more effectively.  The sort of proposals that should be welcomed by left and right alike.

Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly.  The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes....

What’s the alternative?  Raise the odds of punishment, and lower the severity.  That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years.  It means exploring new technologies that allow us to put people under “house arrest” of varying intensity.  In the short term, this will mean spending more money and effort on the system.  But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms.

October 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

First big SCOTUS order list has lots of big "cert denied" decisions in big sentencing cases

In prior posts here and here and here, I flagged a couple of commentaries that had flagged Supreme Court cert petitions to watch with the start of a new SCOTUS Term.  A lot of folks have been paying particular attention to two sex offender cases, Karsjens v. Piper (concerning the constitutionality of Minnesota Sex Offender Program), and Snyder v. Does (concerning retroactive application of Michigan's sex offender registry). 

This morning, the Supreme Court released this 75-page order list in which it denied cert on both of these closely-watched cases.  The order list also reveals SCOTUS also denied cert in a number of other cases of likely interest to sentencing fans, such as various cases concerning the application of the Eighth Amendment limit on LWOP juve sentences set out in Graham and Miller.  As detailed in this post last week, the Supreme Court already added a few criminal cases to its docket as it got back to work for the Term.  But none of the new cases it has taken up are likely blockbusters or possibly as consequential as the cases it now has officially decided not to review. 

For a variety of reasons, I am not too surprised by these denials of cert.  Despite my own wishful thinking that the addition of Justice Gorsuch might juice the parts of the docket I find most exciting, I am largely expecting a relatively quiet Term on the sentencing front.  That all said, hope springs eternal, and hope for some exciting grants might be renewed when the fine folks at SCOTUSblog figure out which cases are missing from this new order list and become hot prospects as "relisted" petitions.

October 2, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, October 01, 2017

"South Dakota Swaps Lawyers for Tablets in Prisons"

The title of this post is the headline of this Courthouse News Service article that struck me as linguistically and conceptually amusing on a number of levels. Substantively, however, I am not sure anyone should be amused by what the body of the story reports:

Sometime in the next few days, inmates in South Dakota prisons will start counting on tablet computers – not a state-funded, in-prison attorney or paralegal – to help them with their cases.  The South Dakota Department of Corrections did not renew a contract for attorney Delmar “Sonny” Walter and his paralegals, who since the early 2000s have assisted the state’s prison population with research and filing of legal documents ranging from habeas petitions to child support documents.

Corrections secretary Denny Kaemingk told the Sioux Falls Argus Leader the move will save taxpayers money. But one prisoner’s rights attorney has concerns.  “What’s someone who can’t read or write or can’t do so fully effectively or without mental illness supposed to do with a tablet?” said David M. Shapiro, clinical assistant professor of law at Northwestern University’s Roderick MacArthur Justice Center. “It’s a pennywise, pound-foolish approach.”

This past May, the state announced every one South Dakota’s approximately 3,000 inmates would receive a free tablet computer.  This allows the inmates longer phone calls, subscriptions to online movies and music, and text messaging with loved ones. Inmates also now have access to law-references websites such as Westlaw and LexisNexis. It was a change supported by Walter, the on-site attorney, but he’s doubtful the technical upgrade is a substitute for legal insight from professionals.

“The things we did made the institution run smoother,” Walter said, noting his staff did everything to help inmates -- most legal novices unfamiliar with complex documents -- with everything from knowledgeably preparing appeals to making copies to helping inmates with medication requests.  “We helped the inmates get into court in a number of ways, and now they won’t have that stuff.”

In 1999, a state judge ruled the prisons must provide “legal assistance” for inmates.  The program -- which cost the state $276,000 in 2017 -- has never been luxurious.  “In Springfield (the Mike Durfee State Prison) we were basically in a closet,” Walter said. “These inmates had maybe two to four hours a week. They often had to choose between a doctor’s appointment or researching their case.”...

He predicts the state will soon see another access lawsuit. “A book isn’t going to make you a lawyer. These people need legal assistance.”...

In the past year, falling revenue has forced South Dakota to cut back on projects and revise spending goals. In part, providing inmates with tablets was an effort to lower re-offense rates and reduce taxpayers’ burden.  Shapiro, the Northwestern law professor, argues this nickel-and-dime cost-cutting distracts from a bigger problem.  “At the end of the day, America has more people locked up than any other country on earth,” he said in a phone interview. “A reduction in incarceration would lead to genuine savings.”

October 1, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 28, 2017

Yale Law School clinic report looks at "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration"

A helpful reader alerted me to this new report released by The Criminal Justice Clinic at Yale Law School.  This press release from the school's website provides some background and a kind of summary of the report, which carries the title "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration":

A new report highlights opportunities for the State of Connecticut to reduce the high rate of incarceration attributable to its parole revocation process. The report was written by the Samuel Jacobs Criminal Justice Clinic (“CJC”) at Yale Law School.

The report details the findings of a research project that began in the fall of 2015 after Governor Dannel Malloy announced the Second Chance Society initiative.  To support that initiative, CJC agreed to undertake a study of parole revocation in Connecticut to explore ways to reduce incarceration and to facilitate the reintegration of parolees into society....

As part of the CJC study, students and faculty personally observed 49 parole revocation hearings in Connecticut in November 2015.  Shortly after these observations, they reported the following findings to state officials:

  • The Board of Pardons and Paroles (BOPP) revoked parole in 100% of the observed cases.
  • BOPP imposed a prison sanction in 100% of observed cases.
  • Nearly all parolees in the observed cases waived their due process rights in the parole revocation process.
  • No parolee appeared with appointed counsel, even though several parolees seemed clearly to qualify for state-provided counsel under the constitutional standard.
  • The typical procedures at parole revocation hearings made it difficult for parolees to contest disputed facts or to present mitigating evidence. Without counsel, incarcerated parolees did not have a meaningful opportunity to develop evidence in support of their claims.

In 2016, CJC administered a follow-up survey to parolees whose hearings it had observed.  The survey revealed that most parolees did not understand the rights that they had waived during the parole revocation process.  The survey also revealed that 79% of the parolees interviewed had lost jobs as a consequence of parole revocation....

Over the last two years, BOPP has begun to implement reforms to its parole revocation practices in response to the CJC study. In 2017, BOPP asked that CJC present additional recommendations in writing, which led to the release of this report.

September 28, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

SCOTUS grants cert on a bunch of criminal cases, including at least one possibly exciting sentencing case

Over the weekend in this post, I flagged a bunch of interesting criminal cases flagged in this lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court got back in action with its end-of-the-summer "long conference."  Today, via this short order list, the Supreme Court reported out some of the results of its work at the long conference.  Specifically, the court granted certiorari in 11 cases (three of which about military courts are consolidated).  Interestingly, though I did not see any of the cases I have been watching on the "certiorari granted" order list, it seems at least five of the case that do appear on the latest order list involve criminal issues:

16-1027 COLLINS, RYAN A. V. VIRGINIA

16-1371 BYRD, TERRENCE V. UNITED STATES

16-1466 HAYS, KS V. VOGT, MATTHEW JACK D. (N.B.: "Justice Gorsuch took no part in the consideration or decision of this petition.")

16-8255 McCOY, ROBERT L. V. LOUISIANA (N.B.: the "a writ of certiorari [is] limited to Question 1 presented by the petition")

16-9493 ROSALES-MIRELES, FLORENCIO V. UNITED STATES

Based on a too-quick bit of Google searching, it appears that the first two cases above deal with Fourth Amendment car searches, the Vogt case deals with Fifth Amendment procedure, McCoy is a state capital case seemingly dealing with right to counsel issues, and Rosales-Mireles is a federal sentencing appeal!  I am hopeful that SCOTUSblog will soon have their usual terrific coverage of all of today's grants with links to the filings.  I suspect that hard-core sentencing fans will be most interested in the final two cases listed above, but I will need to see the filings before I will know just how excited to get about these new cases on the SCOTUS docket.

Meanwhile, for all the cases in the cert pool being watched by others, we will need to wait until at least Monday morning to know more about their fate.  For those rooting for cert grants, not being on today's order list is not a good sign.  But a lot of cases get relisted after the long conference, and thus there is still a decent chance at least a handful more criminal cases of note will be added to the docket in the coming weeks.

UPDATE Not minutes after I finished this post, I see Amy Howe has this long post reviewing all of today's cert grants, and here is part of her accounting of the criminal cases:

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.... 

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home....

Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;

McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Today’s grants are likely to be argued in either January or February.

September 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

US Sentencing Commission releases big new report on "Federal Alternative-to-Incarceration Court Programs"

ThVRFS1G7AThe US Sentencing Commission has this morning released this 100-page report titled "Federal Alternative-to-Incarceration Court Programs."  Here is part of the report's introduction:

During the three decades that it has been in existence, the United States Sentencing Commission (Commission) repeatedly has considered the important issue of when an alternative to incarceration is an appropriate sentence for certain federal defendants. The original 1987 Guidelines Manual provided for alternative sentencing options such as probation for certain low-level federal offenders, and the Commission thereafter amended the guidelines on several occasions to increase the availability of alternative sentences as sentencing options. Despite these amendments, the rate of alternative sentences imposed in cases governed by the sentencing guidelines has fallen steadily during the past three decades, including after United States v. Booker, and Gall v. United States, which increased federal judges’ discretion to impose alternative sentences. In recent years, the Commission has prioritized the study of alternatives to incarceration as a sentencing option.

Many federal district courts around the country, with the support of the Department of Justice (DOJ), have begun creating specialized court programs to increase the use of alternatives to incarceration for certain types of offenders, most commonly for those with substance use disorders. These programs have developed independently of policy decisions of both the Commission and the Judicial Conference of the United States.  Commentators, including judges who have presided over these court programs, have urged the Commission to amend the Guidelines Manual to encourage such programs and provide the option of a downward departure to a non-incarceration sentence for defendants who successfully participate in them and who otherwise would face imprisonment based on their guideline sentencing ranges.

As part of its recent priority concerning alternatives to incarceration, the Commission has studied these emerging court programs. The Commission’s study has been qualitative rather than quantitative at this juncture because of a lack of available empirical data about the programs.  In late 2016 and early 2017, Commission staff visited five districts with established programs, interviewed program judges and staff, and observed proceedings.  On April 18, 2017, the Commission conducted a public hearing about such specialized federal court programs, at which the Commission received testimony from experts on state “drug courts” and other “problem-solving courts” as well as from federal district judges who have presided over three of the more established alternative-to-incarceration court programs.

This publication summarizes the nature of these emerging federal alternative-to-incarceration court programs and will highlight several legal and social science issues relating to them. Part II defines key terms and concepts, discusses the history of alternative-to-incarceration court programs, which originated in the state courts nearly three decades ago, and then specifically describes the types of specialized federal court programs that have been created in recent years.  Part III discusses legal issues related to the federal court programs, including how they fit within the legal framework created by the Sentencing Reform Act of 1984 (SRA) and modified by the Supreme Court in 2005 in Booker.  Part IV identifies social science issues related to the programs, including issues related to the efficacy and cost-effectiveness of the federal court programs.

Part V concludes by identifying several questions about the federal court programs that policymakers and courts should consider in deciding whether, and if so how, such programs should operate in the federal criminal justice system in the future.

September 28, 2017 in Booker in district courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, September 27, 2017

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

Tuesday, September 26, 2017

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 25, 2017

Reviewing the racial bias and other concerns surrounding Georgia's planned execution of Keith Tharpe

CNN has this new article reviewing issues being raised in the run-up a scheduled execution in Georgia.  The article is headlined "Questions of racial bias surround black man's imminent execution," and here are excerpts:

The state of Georgia is set to carry out its second execution of the year on Tuesday, when it plans to put to death Keith Tharpe, who was sentenced in 1991 for murdering his sister-in-law.  But Tharpe, 59, and his attorneys are seeking a stay of execution, based in part on racist comments a juror made after the trial had ended.  Tharpe is black and the now-deceased juror who made the comments was white.

The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted. Rather, they are arguing that his death sentence should be overturned because of juror misconduct.  They say Tharpe's death sentence was the result of a racially biased juror who, in a post-trial interview seven years after Tharpe's conviction and sentencing, used the n-word and wondered "if black people even have souls."

A biased juror, they argue, violates Tharpe's constitutional rights to a fair trial, guaranteed by the Sixth Amendment.  They also argue that the juror lied during jury selection, concealing the fact that he knew the victim's family. Furthermore, the attorneys say Tharpe is intellectually disabled, which would make it illegal for him to be executed under federal law....

At the time of his crime, September 25, 1990, Tharpe and his wife were estranged. Prosecutors said Tharpe stopped his wife and sister-in-law in the road as they drove to work, according to court filings from the federal district court. The documents say he took his sister-in-law, Jacquelin Freeman, to the back of the vehicle and shot her with a shotgun before throwing her into a ditch and shooting her again, killing her. An autopsy showed Freeman had been shot three times.  Prosecutors alleged Tharpe then raped his wife and took her to withdraw money from a credit union, where she was able to call police for help, according to the documents. Three months later, convicted of malice murder and kidnapping, Tharpe was sentenced to death. 

Tharpe's current case centers on the post-conviction testimony of Barney Gattie, a white juror in Tharpe's trial....  Brian Kammer, Tharpe's attorney with the Georgia Resource Center, said Gattie showed in his interview that he "harbored very atrocious, racist views about black people."  Tharpe's lawyers claim Gattie, who is now deceased, used the n-word with the lawyers throughout the interview, in reference to Tharpe and other black people....

Georgia law states that juror testimony cannot be used to impeach the verdict, or render it invalid -- even if it involves racial bias, Kammer said.  At the time Gattie made the statements in question, this rule kept Tharpe's attorneys from being able to use them to prove his death sentence was the result of racial bias.  In Georgia, defendants can only receive a death sentence if the jury reaches the decision unanimously.

But Kammer and his team are relying on some recent United States Supreme Court decisions to back their motion for a stay of execution.  The central one, Kammer told CNN, is Pena-Rodriguez v Colorado.  In March, the US Supreme Court held in a 5-3 vote that laws like Georgia's are invalidated when a juror "makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," Justice Anthony Kennedy wrote in the majority opinion.

Essentially, a juror's racial bias constitutes a violation of a defendant's rights to an impartial jury guaranteed by the Sixth Amendment, and prevents defendants from being able to prove a violation of their constitutional rights.  "A constitutional rule that racial bias in the justice system must be addressed -- including, in some instances, after the verdict has been entered -- is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right," Kennedy said.

Tharpe's request for a stay was denied by the 11th Circuit Court on September 21.  A federal district court denied Tharpe's motion seeking a reopening to federal habeas proceedings on September 5, the day before the state issued a warrant for his execution.

September 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (12)

Lots more notable new reporting and commentary from The Marshall Project

Regular readers surely recall prior times I have flagged the always terrific Marshall Project for producing many great pieces that should be must-reads for sentencing fans.  As I have said before, I rarely have the time or ability to give blog attention to all of the great work done there.  But I could not resist another shout-out post upon seeing in recent days a bunch of pieces with original reporting and commentary that all struck me as particularly blog-worthy (with the last three connected):

September 25, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (5)

Friday, September 22, 2017

"Legal vs. Factual Normative Questions & the True Scope of Ring"

The title of this post is the title of this new paper authored by Emad Atiq available via SSRN. Here is the abstract:

When is a normative question a question of law rather than a question of fact?  The short answer, based on common law and constitutional rulings, is: it depends.  For example, if the question concerns the fairness of contractual terms, it is a question of law.  If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact.  If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court’s seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.

This Article clarifies a principle implicit in the settled classifications.  I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent.  Convention-dependent normative questions, or those that turn essentially on facts about conventions (roughly, what we do around here) are reasonably classified as questions of law.  By contrast, convention-independent normative questions, which turn primarily on fundamental moral norms, are properly classified as questions of fact.  This principle, echoed in recent holdings, clarifies law/fact classifications in such diverse areas as torts, contracts, First Amendment law and criminal procedure.

The principle also promises to resolve a looming constitutional controversy.  In Ring v Arizona, the Supreme Court held that all factual findings that increase a capital defendant’s sentence must be decided by the jury under the 6th Amendment.  Two recent denials of cert. suggest that members of the Court wish to revisit, in light of Ring, the constitutionality of judges deciding whether a criminal defendant deserves the death penalty.  Applying the principle to Ring, I argue that the question of death-deservingness is a convention-independent normative question, and for that reason should be deemed a factual question for the jury.

September 22, 2017 in Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide.  After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....

At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment.  Some residents she knew and worked with, others she did not.  She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.

At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements.  The state recommended 42 years incarceration.  Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.

After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property.  The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....

Appellant was 55 years old at the time of her sentencing....

We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing....  A sentence of 65 is plainly excessive.  It can be affirmatively stated that a 65 year sentence is a life sentence for appellant.  Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.

The sentence is an emotional response to very serious and reprehensible conduct.  However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.  The sentence imposed here does not do so.  It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively.  It runs the risk of lessening public respect for the judicial system.  The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness.  We therefore find by clear and convincing evidence that the record does not support the sentence.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration.  Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)