Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court adds to the mess that is the current Florida death penalty limbo

These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:

"Typo upends Florida Supreme Court’s death penalty ruling"

"Florida's High Court Takes Puzzling Turn on Death Penalty"

"Florida Supreme Court: Prosecutors can't seek death penalty - or can they?"

Here are the basics from the first of these linked reports:

Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.

The reason: A typo.

In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.

Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.

Makes me think of the famous words of one of my favorite philosophers.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"

The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen.  Here are excerpts:

Dylann Roof has a constitutional right not to try to spare his own life....

In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself.  The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates.  Roof has consistently shown he understands the nature of the proceedings against him.  The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology.  He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."

Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty.  Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.

For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.

It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."

Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.

Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.

UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post.  Here are this piece's final two paragraphs:

The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.

In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

"Texas sues feds over confiscated execution drugs"

The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:

For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.

Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.

In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.

In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.

As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....

"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.

Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

January 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, January 03, 2017

Death penalty in Pennsylvania so dysfunctional that it cannot complete long-overdue report on its dysfunction

Unless and until the newly enacted reform ballot initiative magically fixes a whole bunch of problems, California will still be able to lay claim to having the most dysfunctional death penalty system in the United States.  But this new local article, headlined "Three years late, seminal death penalty report still unfinished," highlights why Pennsylvania come in a pretty close second. Here are excerpts: 

Already three years behind schedule, a committee studying flaws in Pennsylvania's death penalty is still a long way away from issuing its much-anticipated report.  The stakes for the Senate's Advisory Committee on Capital Punishment are high, ever since Gov. Tom Wolf vowed nearly two years ago to block executions until its recommendations are issued and acted upon.

But elevated from obscurity by Wolf's moratorium, the all-volunteer committee has no individual budget and no dedicated staff members, and has consistently seen its time line pushed further and further into the future, much to the unhappiness of death-penalty backers.  The new year will see "meaningful, significant progress" in the panel's work, said Steve Hoenstine, a spokesman for state Sen. Daylin Leach, D-Montgomery, a point man in the effort.  But Hoenstine wouldn't commit to the report being completed this year, given the scope of the questions being tackled.  "The goal isn't to produce something as quickly as possible that may or may not be correct," said Hoenstine, whose boss is a staunch opponent of capital punishment. "Studying bias in Pennsylvania's death penalty, it is just an enormous undertaking."

Wolf, a Democrat, announced his moratorium in February 2015, when he called the death penalty "error prone, expensive and anything but infallible." He has since issued reprieves to five inmates facing the death chamber, including Lehigh Valley mass murderer Michael Eric Ballard, who stabbed to death four people in a Northampton home in 2010 while on parole for a prior killing. Even without issuing findings, the advisory committee has proven controversial to death-penalty supporters, who charge the makeup of its 27 members is weighted against capital punishment.

Given the moratorium, it is no surprise that the report continues to be delayed, said Northampton County District Attorney John Morganelli, a Democrat who is a vocal death penalty backer. With executions halted, there's no incentive for the committee to finish its work, he said. "I don't think it is ever going to come," Morganelli said. "Why would they release it?"

The committee, approved by the Senate in 2011, is looking into 17 aspects of capital punishment, including its cost, its impact on public safety, its potential for racial or economic bias, and whether there are sufficient safeguards against the innocent being executed.  The report originally was due in December 2013. The panel includes judges, defense attorneys, prosecutors, clergy members, college professors, a relative of a murder victim, victims advocates, officials from the American Civil Liberties Union and two other nonprofits, and police and corrections representatives.

Hoenstine said delays have nothing to do with the moratorium.  He noted the committee was established while Wolf's predecessor, Tom Corbett, a Republican former prosecutor, was governor.  "This is something that happened long before Gov. Wolf took office and, therefore, long before this moratorium took place," Hoenstine said. "It is a bipartisan search for the truth. It is nothing but that."

Like much of the nation, the state has contentiously debated capital punishment, under which scores of Pennsylvania inmates have seen their sentences reversed. None have been executed here against their will since John F. Kennedy was president.

The committee's work is spearheaded by the Joint State Government Commission, a research wing of the Legislature, with assistance from a state commission on fairness in the courts and by researchers from Penn State University.  Glenn Pasewicz, executive director of the Joint State Government Commission, has said research has proven laborious, given the need for data collectors to go from county courthouse to county courthouse gathering statistics about homicide cases, when the death penalty is sought and when it is imposed.  According to Hoenstine, that work is ongoing. "We want it to be data driven and based on clean data, reliable data," Hoenstine said. "That's a time-consuming process."...

Pennsylvania has 175 prisoners on death row, but it rarely performs an execution, going back well before Wolf's moratorium. Just three men have been put to death in the modern era of capital punishment, and all were volunteers who abandoned legal challenges to their sentences. The last was Philadelphia "house of horrors" murderer Gary Heidnik, who was lethally injected in 1999.

January 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 02, 2017

Great report on Texas justice reviewing why Lone Star State is a "leader in criminal justice reform"

Images (4)Via this local press article, headlined "Report: Don't cut funding for inmate rehabilitation," I came across this terrific new report from the Texas House of Representatives Committee on Corrections.  These excerpts from the press piece provides a partial summary of the report:

When lawmakers return to Austin in 10 days to begin grappling with what appears will be a bare-bones state budget, a legislative panel that oversees the Texas prison system is urging them to resist cutting funding for programs that help former inmates and probationers adjust to free-world life.

“As (the prison system) cannot cut back on the security and public safety components of their mission, it is likely that many of the programs that are making a real difference will face the axe,” says a report released over the holidays by the Texas House Corrections Committee.

“The state that leads the nation in executions also leads the nation in providing alternatives to incarceration,” the report adds. “An American state that used to be infamous for its ‘lock 'em up and throw away the key’ approach to crime is now providing an unlikely inspiration to other states and countries.”

The 68-page report that the panel will likely use as a blueprint for legislative initiatives once 2017 session begins Jan. 10 makes several recommendations, include lowering the fees that probationers must pay, opting out of a federal program that requires the suspension of a driver’s license for anyone convicted of possessing even a small amount of marijuana and sealing the criminal records for qualifying former inmates who remain out of trouble for a specified period of time.

The report comes some 20 years after Texas leaders frustrated by rising crime rates completed a massive prison building program that tripled the system’s capacity. It even uses a phrase once thought to be politically toxic is describing the state’s approach for helping lawbreakers return to society. “Texas is a leader by being ‘softer on crime,’ although we prefer the word ‘smarter,’” it says. “It's something to think about as we head into the next legislative session.”....

The committee report says probation revocations, while still relatively high, have been steadily dropping for about a decade as lawmakers began devoting more resources to programs aimed at reducing inmates’ and probationers’ substance addictions and arming them with job skills. During that period, the report says, Texas’ crime rate has dropped about 20 percent while recidivism rates declined from 28 percent to 21 percent.

During a hearing in February, Corrections Committee Chairman Jim Murphy said it’s important that inmates and probationers believe that the state is committed to programs aimed at minimizing the chance that they’ll be back behind bars. “I am thinking about the dynamic of someone being in the system, wanting to improve themselves, and being told ‘you're not a priority,’” said Murphy, a Houston Republican. “If we're trying to get someone not to recidivate, that's exactly opposite of what I think the intended result would be.”

According to the report, which Murphy signed in early December before its release last week, the fees associated with being on probation can be insurmountable for offenders struggling to find employment. Probationers are charged upward of $60 a month to help cover the cost of supervision. Many are required to take and pay for classes aimed at fighting addiction or controlling anger and violence. Probationers who lose driving privileges can be required to take a class to have the license reinstated and pay up to $325 before being allowed to drive, even if it’s just to and from work.

The list goes on. “There are fees for records management, for juries, for judicial support, for court security, and for indigent defense,” the committee’s report says. “Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it.” Often, the report continues, judges who impose the costs have little information regarding an offender’s ability to pay them. “In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?” the report asks.

The committee’s report points out that in April 2016, Pennsylvania enacted legislation, allowing criminal records of qualified nonviolent offenders to be sealed for offenders who remain free of legal trouble for 10 years. The records of those charged but not convicted of a crime can be sealed after 60 days.

As this partial summary should highlight, any and everyone interested in state or national criminal justice reform ought to have this across this important new Texas government report high on their New Year's reading list.

January 2, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Understanding why Dylann Roof will not present penalty phase evidence at his capital trial

Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory.  Here is how the lengthy piece begins:

Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.

“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”

Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.

“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.

The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.

Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.

January 2, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, January 01, 2017

Chief Justice extols the work of federal district judges in traditional year-end report

The Chief Justice of the United States John Roberts decided to use his 2016 Year-End Report on the Federal Judiciary, which is available at this link, to praise the work of federal district judges. The report starts with a lovely little history lesson, and it includes these passages that should especially engage criminal justice fans:

The character of a district judge is most starkly evident in a criminal trial.  Most criminal charges are resolved through the plea bargaining process, but those cases that go to trial place especially high demands on the court.  The judge must move the process forward in accordance with the Speedy Trial Act, consistent with the defendant’s right to constitutionally adequate representation.  He must promptly decide motions and make evidentiary rulings as the trial proceeds, typically without the luxury of calm consideration and research in the quiet of chambers.  The judge must carefully guide the jury on the elements of the offense and the prosecution’s burden of proof.  If the trial results in conviction, the judge faces the somber task of sentencing.

Most district judges agree that sentencing is their most difficult duty.  The judge must confront the offender, face-to-face, and take just account of human failing.  The judge must consider the perspectives of the prosecutor, the defendant, and the victim, and impose a penalty that, by design and necessity, will alter the direction of the defendant’s life.  In determining appropriate punishment, his discretion is confined by legislative determinations, and guided by carefully considered sentencing guidelines and a presentence report.  At the end of the day, the sentence nonetheless critically reflects the judge’s wisdom, experience, and educated grasp of what he observed firsthand in the courtroom. In delivering the sentence, the judge speaks as the voice of the community.

In part because I know and respect so many federal district judges, I am so very pleased to see the Chief Justice deliver this kind of justified professional love letter. In addition, because I have long been a strong and dogged advocate for SCOTUS Justices having experience as a trial judge, I cannot help but "read between the lines" here and see a kind of chiefly endorsement for the next SCOTUS justice having district court experience.

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

Saturday, December 31, 2016

Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game

As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs."  Here is more about the ruling and its context:

In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.

Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....

Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....

In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.

The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.

December 31, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Thursday, December 29, 2016

Will Ohio get back in the business of state killing in 2017?

The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info."  Here are excerpts from the AP piece:

A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.

Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.

At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.

For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.

What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017.  That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.

Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....

The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.

December 29, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, December 28, 2016

Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial

As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:

But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.

Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."

Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.

The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.

Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.

Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.

Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.

Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....

Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."

December 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case

Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters.  The piece is headlined "107 former Justice officials think this case was handled unjustly.  DOJ must act."  Here are excerpts:

“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice.  Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years.  Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons.  In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served.  The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs.  Moreover, all 107 of us are working on this pro bono.  Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.

The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa.  In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers.  The raid resulted in the company declaring bankruptcy.  Rubashkin was arrested a short time later and charged with bank fraud.  And this is where things went terribly wrong.  The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....

I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case.  Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law.  If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.

December 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision: 

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, December 23, 2016

Seeing the state of criminal justice reform through the lens of state reforms

Though the federal criminal justice system always gets lots of attention, the reality is that most of the real criminal justice "action" takes place at the state (and local) level.  Consequently, this Medium commentary by Jenna Moll, Deputy Director, U.S. Justice Action Network, titled "2016: States Home to Success on Effective Justice Reforms," serves as a useful year-end review of the state of our criminal justice reform union. Here is how the lengthy piece gets started, its middle headings, and its ending:

In 2016, the U.S. Justice Action Network made an aggressive push in 12 states to safely reform sentencing laws, reduce mandatory minimums, expand effective treatment and rehabilitation options, and improve the reentry process for returning citizens in our justice system.

With more than 1.3 million of the Americans currently behind bars in state facilities, our state work is crucial in order to actually impact the country’s incarceration rate. And every time we add another state, red or blue, to our list of successes, we make it harder for Congress to ignore the bipartisan calls for action.

The reason for our success is no secret but it is unique. We have used our right-left coalition and national allies to bring together law enforcement officials, faith-based community leaders, and stakeholders from all walks of life who recognize the pressing need to make changes.

We’ve had great successes throughout the year — and we haven’t taken our foot off the gas yet. Just last week in Ohio, the legislature passed fixes to the civil asset forfeiture system in the state that better protect due process and property rights for Ohio residents. A victory, right before the buzzer in 2016. Here’s where we and our allies made the most progress this year:

Removing Barriers to Employment...

Changing Laws, Changing Lives...

Refocusing Our Justice System ...

Bringing State Successes to D.C....

2017

Looking ahead, we’re already focused on long-term success, educating lawmakers and interest groups in states and pressing them to coalesce around robust legislative recommendations that can make the change voters seek. We’re involved in this process across the country — in Illinois with the bipartisan State Commission on Criminal Justice and Sentencing Reform, in Louisiana and Pennsylvania with their Justice Reinvestment Initiatives, and in Ohio through the Criminal Justice Recodification Committee.

In 2016, a clear roadmap for passing successful reforms at the state level was created, strengthened, and expanded. We know that by harnessing the power of bipartisan, state-based coalitions and engaging law enforcement, the business community and faith leaders, we can set the agenda for justice reform and gain a consensus that few other issues can achieve in the current political climate. That’s why in 2017, our organization is continuing efforts in almost a dozen states and expanding our efforts on the state level to include Tennessee, Texas, and Wyoming.

At times, progress on the legislative level seems to move at a snail’s pace, in light of the overwhelming levels of bipartisan support from voters. But it’s clear that 2016 was a successful year for the justice reform movement at the state level. Across eleven states, we’ve seen thirty-six bills that we and our coalitions championed signed into law by Governors from the right and the left, and we are incredibly proud of this work. And even more proud of those allies with whom we’ve had the honor of standing side-by-side.

I call that progress — and I look forward to even more in 2017.

December 23, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, December 22, 2016

Florida Supreme Court brings back to life some older death sentences

As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences.  Here are the basics: 

Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.

The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.

The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.

Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws.  Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.

The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:

After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.

There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.

UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:

After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley.  The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.

December 22, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, December 21, 2016

DPIC releases year-end report highlighting "historic declines" in use of the death penalty in 2016

NewDeathSentences1973-2016This press release from the Death Penalty Information Center, titled "Death Sentences, Executions Drop to Historic Lows in 2016," provides a summary of the DPIC's 2016 year-end report on the administration of the death penalty in the United States. Here is the text of the press release:

Death sentences, executions, and public support for capital punishment all continued historic declines in 2016.  American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972.  The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.

“America is in the midst of a major climate change concerning capital punishment.  While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report.  “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”

For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2).  Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.

This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions.  Only five states conducted executions this year, the fewest number of states to do so since 1983.  Two states -- Georgia, which had the most executions (9), and Texas, which had the second highest number (7) -- accounted for 80 percent of all executions in the U.S.  Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.

State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed.  The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states.  And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.

America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment.  At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices.  In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.

DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning.  This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.

I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because, as I have said before, I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.

December 21, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

"The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century"

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

This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly.  Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary.  A second goal is to promote reliable case outcomes.  This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings.  The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system.  The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.

December 21, 2016 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Detailing how global financier George Soros has been funding efforts to take out local prosecutors

161215_soros-map_v1I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:

Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.

Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.

Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”

The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.

Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:

Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.

David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”

Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.

The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...

Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....

Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.

As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.

The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”

In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.

“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...

Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.

Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”

She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said

Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.

Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”

December 21, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, December 20, 2016

New report spotlights that majority of condemned Oregon murderers have mental impairments

In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.  The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:

Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.”  More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.”  By all functional measures, Oregonians have abandoned the death penalty.

And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences?  This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged.  We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.

Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred.  The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....

Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....

Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....

[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome. 

December 20, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

"Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway"

5493-165wThe title of this post is the title of this new book by my FSR colleague and LawProf Michael O’Hear. For sentencing fans, this new book would surely make a great stocking stuffer, as this text from the publisher's website suggests:

The dramatic increase in U.S. prison populations since the 1970s is often blamed on the mandatory sentencing required by “three strikes” laws and other punitive crime bills. Michael M. O’Hear shows that the blame is actually not so easy to assign. His meticulous analysis of incarceration in Wisconsin — a state where judges have considerable discretion in sentencing — shows that the prison population has ballooned anyway, increasing nearly tenfold over forty years.

O’Hear tracks the effects of sentencing laws and politics in Wisconsin from the eve of the imprisonment boom in 1970 up to the 2010s. Drawing on archival research, original public-opinion polling, and interviews with dozens of key policymakers, he reveals important dimensions that have been missed by others.  He draws out lessons from the Wisconsin experience for the U.S. as a whole, where mass incarceration has cost taxpayers billions of dollars and caused untold misery to millions of inmates and their families.

Praise

“Serious students of modern sentencing reforms — as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration — must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”
—Douglas Berman, author of the Sentencing Law and Policy Blog

“Fascinating political and social history. O’Hear puts national criminal justice trends into a single-state frame, providing much sharper insights than often come from trying to look at the entirety of this very big country. This is first-rate work.”
—Frank O. Bowman III, University of Missouri School of Law

December 20, 2016 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, December 19, 2016

"The Structure of Federal Public Defense: A Call for Independence"

The title of this post is the title of this notable new article now available via SSRN authored by David Patton. Here is the abstract:

Independence is a foundational requirement for any good system of public criminal defense.  The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence.  And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients.  The arrangement creates serious constitutional, ethical, and policy problems.  This Article proposes a solution: an independent federal defense agency.  The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services.

The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.”  In many ways, federal public defense is ideally suited for placement outside of the formal branches of government.  Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority.  Federal public defense attorneys, however, neither make rules nor enforce them.  And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary.  In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.

December 19, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner

This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:

A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.

The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.

“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously.  Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.

The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline.  First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification. 

Some (of many) prior related posts on the Brock Turner case:

December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, December 18, 2016

Anyone eager to predict how many last-month clemencies Prez Obama will grant?

NA-CM807_CLEMEN_9U_20161217145706The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:

Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....

Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.

These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...

Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.

In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.

Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...

Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.

But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.

I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017.  This is a nothing but a blind guess and I have absolutely no insider knowledge here.  What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.

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Some recent (post-Election Day) posts on Prez Obama and clemency:

UPDATE:  In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.)  Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.

Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.'   And the chart the WSJ used (and you reprinted) is wrong.  Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."

December 18, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Duties of Capital Trial Counsel Under the California 'Death Penalty Reform and Savings Act of 2016'"

The title of this post is the title of this timely and interesting new article authored by Robert Sanger now available via SSRN.  Here is the abstract:

Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016.  The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity.  While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.

Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act.  Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus.  The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death.  These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court.  In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.

Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds.  Some of the objections will be systemic and others will be case specific.  There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process.  The Act is inoperable because it is not self-executing and because it is unfunded.  The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause.  The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.

Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.”  Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work.  Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.

Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution.  For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act.  Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.

December 18, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, December 17, 2016

"Prosecutorial Misconduct: The Best Defense Is a Good Defense"

A helpful reader altered me to this recent on-line law review essay in which LawProf Fredrick Vars responds to a notable law review article by LawProf Michael Perlin.  These first two paragraphs from the essay should whet the appetite for those who may be eager to consume both writings:

In “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, Professor Michael L. Perlin persuasively argues that prosecutorial misconduct leads many people with mental disabilities to be sentenced to death and executed.  Toward the end of his article, he compiles over a dozen previously-proposed reforms aimed at improving prosecutorial practice.  As explained below, I am not optimistic about the prospects of these reforms, either to be adopted or to be highly effective.  I think more could be accomplished by directing resources and training to the other side of the equation — public defenders.  A smaller number of counties each year account for the majority of death sentences and executions.  We need to better equip front-line public defenders in those counties to identify and counter prosecutorial misconduct, and, more broadly, to provide competent representation in capital cases, particularly those involving mental disabilities.that engages.

Perlin is optimistic that recent death row exonerations will be a turning point in the battle against prosecutorial misconduct in capital cases involving defendants with mental disabilities.  He hopes that one particularly egregious case, in which no one questioned the defendants’ guilt, will be a watershed like the Birmingham church bombings, the most notorious of which took place just a few minutes from my home.  I share Perlin’s hope but not his optimism.  The bombing helped push forward the civil rights movement because everyone could empathize with the four little girls dressed in their Sunday best. Dr. Martin Luther King, Jr. quite credibly described the bombing as “one of the most vicious and tragic crimes ever perpetrated against humanity.”  Mentally disabled death row inmates, even the innocent ones, live on the other side of a divide wider even than race in the 1960s. Few of us can identify closely with exonerated inmates. As a result, only the accumulation of exonerations, not one signature event, reveals the flaws in the process and shifts public opinion gradually against the death penalty.

December 17, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, December 16, 2016

Noticing that other states are now messing with Texas for being capital punishment's capital

This new Vice article, headlined "Texas Is No Longer America's Death Penalty Capital," reports on the unique features of 2016 in the modern history of the death penalty in the United States. Here are highlights:

Texas has long been the heartland of the death penalty in America. Since capital punishment was reinstated by the Supreme Court in 1976, the Lone Star State has executed 538 people — more than the next top six states combined. But 2016 saw a precipitous drop in the number of executions in the state. Thanks in part to new judicial scrutiny of death sentences, just seven Texans were executed this year, the fewest since 1996.

For the first time since 2001, Texas is not the most execution-happy state in the country — that grisly title belongs to Georgia, which executed nine people. This is the first year since 1984 that Texas didn't execute a single black person. And juries sentenced just three new Texas defendants to death for the second year in a row. The data was highlighted in a report released Thursday by the Texas Coalition to Abolish the Death Penalty [available here]....

One way to understand the decline is by looking at the people on death row who weren't executed. The Court of Criminal Appeals — the highest criminal court in the state — granted stays of execution to seven people who were scheduled to die this year, a higher number than normal: From 2012 through 2014, the court only granted three stays, according to the coalition. "The rising number of stays suggests that the Court of Criminal Appeals is registering the concerns about the fairness and accuracy of our state's capital punishment system," Kathryn Kase, executive director of the nonprofit criminal justice legal group Texas Defender Service, told me in an email. "These stays give the court opportunities to remedy the failures of past death penalty practices for which Texas has been roundly criticized."

In several of the cases where inmates received stays, the court leaned on a 2013 state law that gives inmates whose convictions were based on discredited science the opportunity for a new trial. Reformers say the law is among the most progressive in the country at fighting junk science in the courtroom.... Gregory Gardner, an attorney who represented two Texas death row defendants who received stays of execution this year — and a third client who was executed — believes the junk science law to be a powerful tool for defendants. "It shows how many convictions in the late 90s and the turn of the century were based on this crappy science that's been discredited," he said. "It's scary because we know people in Texas have been executed because of it in the past."

Of course, just because executions are down doesn't mean the ones taking place aren't still controversial. According to the anti-death penalty coalition's report, almost half of the people executed in the state in the last two years had a significant mental impairment. Similarly, the fact that Texas didn't execute any black people this year doesn't mean the death penalty is suddenly race-blind. All three of the Texas defendants sentenced to death in 2016 were black, and 80 percent of new death sentences in the state over the last five years have been imposed on people of color. Research has also consistently shown that murders of white victims are more likely to result in a death sentence than murders of minority victims....

And it's possible that Texas's slump in executions won't last. The state has already scheduled nine executions in the first six months of 2017. Even so, the reduction in new death sentences may augur a future where seven executions a year isn't celebrated as a noteworthy dip, but questioned as a macabre reality. "The courts are finally being more careful with these cases," Gardner told me. "We've seen the number of death sentences plummet, and I think that trend will continue."

December 16, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, December 15, 2016

Post-Hurst hydra chews up all death sentences in Delaware via new retroactivity ruling

6a00d83451574769e201b8d1a7e505970c-320wiRegularly readers know I use the term "post-Hurst hydra" to describe the aftermath litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases. Today the post-Hurst hydra took another big bite out the the death penalty in the First State as reported in this AP article:

A Delaware Supreme Court ruling earlier this year declaring the state's death penalty law unconstitutional is retroactive, meaning an inmate convicted of killing a police officer must be resentenced to life in prison, the justices said in a follow-up decision Thursday.

The ruling came in an appeal by Derrick Powell, who was convicted of killing Georgetown police Officer Chad Spicer in 2009, but it likely means that 11 other former death-row inmates also will be spared from execution.

In August, a majority of the justices said Delaware's death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.

That ruling came after the U.S. Supreme Court said Florida's death sentencing law, which also gave judges the final say, was unconstitutional. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.

In its 15-page decision Thursday, the Delaware court said its August ruling invalidating the state's death penalty law was a "watershed procedural ruling" that must be applied retroactively.

The full opinion in Powell v. Delaware is available at this link.

December 15, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Unsurprisingly, Dylann Roof gets convicted on all counts by federal jury

As this extended USA Today article reports, a federal "jury in the trial of Emanuel AME Church shooter Dylann Roof on Thursday found Roof guilty of 33 counts, including hate crimes after two hours of deliberations." Here is more:

The verdict came about an hour after they asked to look at a video of his confession, expressing interest in his statements that he didn't know how many people he had shot. The jury of eight white females, one white male, two black females and one black male was sent out initially a little after 1 pm, then recalled to clarify a legal instruction by the judge....

Closing arguments in the guilt phase of the trial ended late Thursday morning. Dylann Roof's chief defense lawyer told the jury that the most important question in the 2015 murders of nine black parishioners is why and he pointed to Roof's internet exploration of racial crimes as an explanation. "That is the why as far as the evidence shows," David Bruck told the jury.

But government prosecutors told the jury there was no mystery to Roof's motivation, which they said stemmed from racial hatred so immense that he was willing to shoot innocent people as they prayed in a church and lay wounded on the floor.

Roof's lawyers called no witnesses when testimony ended this week and Roof has indicated he will take over his defense in the sentencing phase if he is found guilty. Bruck did not contest the evidence in his closing arguments and even offered praise for the FBI's probe in the case. He focused instead on what motivated Roof, sowing seeds of doubt about his intent, an argument that might be useful if jurors deliberate his sentence....

U.S. District Judge Richard Gergel sustained multiple objections from prosecutors during Bruck's closing, as he did during the opening of the trial when prosecutors felt Bruck was attempting to take jurors to the penalty phase of the trial before Roof's guilt was decided. One of the objections came after Bruck attempted to discuss Roof's mental status, a discussion that Gergel said should take place during a penalty phase.

The penalty phase of this trial is due to take place in January.

December 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, December 14, 2016

SCOTUS adds a few more criminal cases to its current merits docket

Via this post at SCOTUSblog, I see that the Supreme Court today added a handful of cases to its docket.  Here is the SCOTUSblog description of the criminal cases in the bunch:

Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother.  The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants.  The men sought to vacate their convictions, but were unsuccessful in the lower courts.

Today the Supreme Court agreed to review both cases.  Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.  Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial.  But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady....

In Lee v. United States, the justices return to a familiar topic: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.  The petitioner in the case, Jae Lee, is a Tennessee man who came to the U.S. from South Korea in 1982 and eventually became a successful restauranteur. In 2009, he was charged with possession of ecstasy with intent to distribute.  After seeing the evidence against Lee, Lee’s attorney recommended that Lee plead guilty, so that he would receive a shorter sentence.  But, and despite Lee’s attorney’s assurances to the contrary, a guilty plea would result in Lee’s permanent and mandatory deportation.

Lee then sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney.  The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had indeed provided deficient advice when he told Lee that a guilty plea would not expose him to deportation.  But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.  That is the question that the court agreed to review today.

Today’s cases will likely be argued in late winter or early spring. The justices’ next regularly scheduled conference is January 6.

December 14, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, December 13, 2016

Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge

United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016).  A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:

In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726.  The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.

Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution."  Id. at 2755.  The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states.  It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.

In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority.  Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases.  Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty.  And both identified utilitarian purposes such as deterrence which may justify executions.

The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court.   A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court.  The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002).  Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.

But a trial court has its own contribution to make to the debate.  The court can hold a hearing and permit witnesses to testify.  In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner.  The questions he raised are troubling.  They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.

Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice.  As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.

The trial court's obligation does not end with a review of the facts.  The court is required to address the legal issues raised by the parties.  That resolution may be no more than an acknowledgment that the law has been settled on a particular question.  Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop.  The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.

To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty.  The court has also considered the separate argument that application of the death penalty has become arbitrary.

The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty.  As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants.  By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole.  If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.

The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences.  The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.

Download Fell order denying Motion to Strike 12-13-16

December 13, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

A deep look into Alabama's new sentencing systems and their impacts

6a00d83451574769e2019affbb5974970cBecause our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:

The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.

Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”

The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.

The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).

The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.

The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.

If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...

Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”

On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...

As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”

State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.

Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....

On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.

“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”

Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”

The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.

For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”

December 13, 2016 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, December 12, 2016

"Adversarial Asymmetry in the Criminal Process"

The title of this post is the title of this interesting looking new article that I just noticed via SSRN and that is authored by Daniel Epps. Based on the abstract, this article seems both provocative and somewhat counter-intuitive. But I think current and former prosecutors might have particular insights concerning the article's claims. Here is the abstract:

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.

In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution.

Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.

December 12, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt

I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list.  Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list.  Here are excerpts from that dissent:

Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....

Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003).  This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890).  I should hope that this kind of delay would arise only on the rarest of occasions.  But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....

<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances.  On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection.  State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623.  Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624.  The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment?  See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.

As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)...  Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).

I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay).  Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.

December 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, December 10, 2016

U.S. Supreme Court adds federal drug-offense forfeiture case to its docket

As reported here at SCOTUSblog, on Friday afternoon "the justices issued orders from [their] private conference, adding one new case to their merits docket for the term."  That new case concerns a criminal justice/sentencing issue, forfeiture, that has been a focal point of concerns for reform activists across the political spectrum.  Here are the details from SCOTUSblog about the forfeiture case now before the Justices on the merits:

They agreed to review the case of Terry Honeycutt, who worked as a salaried employee at a hardware store owned by his brother, Tony.  The two brothers were charged with federal drug crimes for the store’s sale of an iodine-based water disinfectant -- which can also be used to make methamphetamines.  Tony pleaded guilty and forfeited $200,000 to account for the proceeds of the illegal sales.  After Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry countered that he should not have to forfeit the remaining proceeds because he did not own the store and therefore did not receive them.  The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed. It ruled that Terry could be held independently liable for the store’s proceeds from the sales even if the funds never actually reached him.

The federal government acknowledged that the courts of appeals are divided on the question presented by Terry’s appeal. It nonetheless urged the justices to deny review, explaining that the split among the circuits is “lopsided and recent.”  And in any event, it contended, Terry’s case is not a good one in which to consider that question, because he would also be liable for the forfeiture under the conflicting rule adopted by the U.S. Court of Appeals for the District of Columbia Circuit.

Despite the government’s objections, the justices granted certiorari [and] Honeycutt v. United States will likely be argued in the spring, with a decision by the end of June.

December 10, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, December 09, 2016

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, December 08, 2016

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Wednesday, December 07, 2016

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences

As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:

Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible."  A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.

The first ruling involved a murderer who was 16 at the time.  The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled.  In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...

The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime.  Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."

A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.

I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):

On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.

In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....

Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.

The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.

December 7, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, December 06, 2016

SCOTUS unanimously upholds broad interpretation of insider trading in Salman

The Supreme Court handed down this morning its first significant criminal justice ruling of the Term via a unanimous decision in Salman v. US, No. 15-628 (S. Ct. Dec. 6, 2016) (available here).  Here is how the opinion authored by Justice Alito for a unanimous court gets started:

Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage.  48 Stat. 891, as amended, 15 U.S.C. § 78j(b) (prohibiting the use, “in connection with the purchase or sale of any security,” of “any manipulative or deceptive device or contrivance in contravention of such rules as the [Securities and Exchange Commission] may prescribe”); 17 CFR § 240.10b–5 (2016) (forbidding the use, “in connection with the sale or purchase of any security,” of “any device, scheme or artifice to defraud,” or any “act, practice, or course of business which operates . . . as a fraud or deceit”); see United States v. O’Hagan, 521 U.S. 642, 650–652 (1997).  Individuals under this duty may face criminal and civil liability for trading on inside information (unless they make appropriate disclosures ahead of time).

These persons also may not tip inside information to others for trading. The tippee acquires the tipper’s duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper’s duty, and the tippee may commit securities fraud by trading in disregard of that knowledge.  In Dirks v. SEC, 463 U.S. 646 (1983), this Court explained that a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit.  And, we went on to say, a jury can infer a personal benefit — and thus a breach of the tipper’s duty — where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id., at 664.

Petitioner Bassam Salman challenges his convictions for conspiracy and insider trading.  Salman received lucrative trading tips from an extended family member, who had received the information from Salman’s brother-in-law.  Salman then traded on the information.  He argues that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them.  The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a “‘gift of confidential information to a trading relative.’” 792 F.3d 1087, 1092 (CA9 2015) (quoting Dirks, supra, at 664).  Because the Court of Appeals properly applied Dirks, we affirm the judgment below.

December 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, December 05, 2016

Anyone interested in SCOTUS speculating after Ohio repeat execution case again left in limbo?

The question in the title of this post emerges from the latest SCOTUS order list here, which does not mention in any way Broom v. Ohio.  This accounting of Broom from SCOTUSblog's most recent Relist Watch will remind readers why I am paying (too?) much attention to this case:

16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4, November 10 and November 22 conferences)

For the first few relists in early November, I was speculating that the Justices were waiting for one or more of them (e.g., Justices Breyer and Ginsberg and ____) to complete a dissent from the denial of certiorari.  But now that this unique (and not-so-complicated) case has been in front of SCOTUS for well over a month, I am starting to think the Justices are inclined to hold on to this case until a replacement for Justice Scalia is named; once that new possible Justice is named, the current Justices can and will all have a better sense of whether and how the new Justice might break a possible 4-4 tie in this case.

Before urging readers to check out all the prior posts linked below (and others), I cannot help but flag a phrase in this post from Sept 2009 when Ohio first tried to move forward with a second execution attempt: "it is hard to predict if and when and how the US Supreme Court will be brought into this fray."  It is perhaps worth recalling that this phrase was written when Justices Scalia, Souter and Stevens were all on SCOTUS.  Now, a (lucky?) seven years later, we have Justices Kagan and Sotomayor and an open seat.

Related posts (most from 2009) on botched Broom execution attempt and its aftermath:

December 5, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Shining spotlight on ugly dark racial realities of New York State's prison and parole systems

The New York Times has an important new series of articles examining biases in New York State's prison and parole systems. Here are links to and key passages from the first two articles:

"The Scourge of Racial Bias in New York State’s Prisons"

A review by The New York Times of tens of thousands of disciplinary cases against inmates in 2015, hundreds of pages of internal reports and three years of parole decisions found that racial disparities were embedded in the prison experience in New York.

In most prisons, blacks and Latinos were disciplined at higher rates than whites — in some cases twice as often, the analysis found.  They were also sent to solitary confinement more frequently and for longer durations.  At Clinton, a prison near the Canadian border where only one of the 998 guards is African-American, black inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.

A greater share of black inmates are in prison for violent offenses, and minority inmates are disproportionately younger, factors that could explain why an inmate would be more likely to break prison rules, state officials said. But even after accounting for these elements, the disparities in discipline persisted, The Times found.

The disparities were often greatest for infractions that gave discretion to officers, like disobeying a direct order.  In these cases, the officer has a high degree of latitude to determine whether a rule is broken and does not need to produce physical evidence.  The disparities were often smaller, according to the Times analysis, for violations that required physical evidence, like possession of contraband.

"For Blacks Facing Parole in New York State, Signs of a Broken System"

An analysis by The New York Times of thousands of parole decisions from the past several years found that fewer than one in six black or Hispanic men was released at his first hearing, compared with one in four white men.

It is a disparity that is particularly striking not for the most violent criminals, like rapists and murderers, but for small-time offenders who commit property crimes like stealing a television from a house or shoplifting from Duane Reade — precisely the people many states are now working to keep out of prison in the first place.

Since 2006, white inmates serving two to four years for a single count of third-degree burglary have been released after an average of 803 days, while black inmates served an average of 883 days for the same crime.

December 5, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 04, 2016

After securing right of self-representation, Dylann Roof says he now wants lawyer help for guilt phase of capital trial

Mass murderer Dylann Roof is making headlines again, as reported in this new BuzzFeed News piece, "Dylann Roof Has Changed His Mind And Wants His Attorneys Back: The alleged Charleston church shooter had been representing himself in court, but on Sunday he asked for his lawyers back for part of his trial." Here are the basics:

Dylann Roof, the white supremacist who allegedly killed nine people at a historic black church in Charleston last year, on Sunday asked a judge to allow his defense attorneys to once again represent him at trial — but only through part of the case.

Roof successfully petitioned last week to act as his own lawyer during the death penalty trial in accordance with his rights under the Sixth Amendment. He was then involved in the jury selection process, but was assisted by stand-by counsel. However, Roof changed his mind on Sunday, filing a motion and handwritten letter asking US District Judge Richard Gergel to let his lawyers return, but only for the phase of the trial in which jurors will decide whether Roof is guilty or innocent.

“I would like to ask if my lawyers can represent me for the guilt phase of the trial only,” Roof wrote. “Can you let me have them back for the guilt phase, and then let me represent myself for the sentencing phase of the trial?”

“If you would allow that, then that is what I would like to do,” Roof wrote, signing his name. Judge Gergel is yet to make a decision on the motion, but he had been deeply critical of Roof’s original decision to represent himself, telling the defendant it was “strategically unwise” and “foolhardy.”

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Congress finally gets one bipartisan piece of federal criminal justice reform to Prez Obama's desk ... thanks to Trump's victory?

Thanks to this posting by Ted Gest at The Crime Report, headlined "Finally, Some Congressional Action on Criminal Justice," I learned that Congress last week was able to use its lame-duck days to finally enact a need reauthorization on the 2004 Justice for All Act.  Here are the basics:

It took a lame-duck session to do it, but Congress has approved one of its most significant pieces of criminal justice legislation during its two-year term that ends this month: the Justice for All Act. The measure, which had considerable bipartisan support, should help the testing of evidence in rape cases, expand post-conviction DNA testing, strengthen crime victims’ rights, and help states improve their systems to represent poor people in criminal cases.

The Senate approved the bill [late Thursday] after the House okayed it earlier this week, sending the measure to President Obama for his signature. It expands on a law enacted in 2004 during George W. Bush’s presidency.

Sen. Patrick Leahy (D-VT), the top Democrat on the Judiciary Committee and a former prosecutor, was a leading sponsor of the bill. He said yesterday that during his many years as a leader of the Judiciary panel, “It has become clear to me that our system is deeply flawed – there is not always justice for all.” When the bill passed the House on Tuesday, Judiciary Committee Chairman Bob Goodlatte (R-VA) said it provides “law enforcement resources to identify the guilty and free the innocent.” Other major sponsors were Sen. John Cornyn (R-TX) and Reps. Ted Poe (R-TX) and Jim Costa (D-CA).

The bill ensures that at least least 75 percent of federal funds for handling “rape kits” of evidence submitted by victims will go toward direct testing and not other purposes and offers incentives to states to hire full-time Sexual Assault Nurse Examiners, especially in rural and under-served areas. Crime victims would get more access to restitution funds under the bill. It also settles disputes involving the federal Prison Rape Elimination Act (PREA), which threatens to cut off federal anticrime aid to states that don’t take sufficient action to protect inmates against sexual assault. The new law protects aid to states under the separate Violence Against Women Act from being cut in states that don’t comply with PREA. It allows states six years to abide by PREA before their federal funds are cut off, and requires greater transparency from states on the status of their PREA implementation.

The bill renews the Kirk Bloodsworth Post-Conviction DNA Testing program, which provides funding to states to help defray costs associated with post-conviction DNA testing.

I am quite pleased to seem some (minor?) federal criminal justice reform finally make it through this Congress and get to the desk of Prez Obama. (And this section-by-section accounting of the legislation leads me to think that it perhaps should not be considered "minor" even though it seems unlikely to be getting much press and advocacy attention.)

And, as the title of this post suggests, I am quite unable to avoid thinking about whether the passage of this criminal justice legislation was made possible by the new Trumpian world order in Congress. For whatever gridlock reasons, the seemingly non-controversial Justice for All Act could not get to the desk of Prez Obama before the November election. But, for whatever new-world-order reasons, this legislation slid right on through the lame duck Congress no that nobody needed any longer to be focused only on election-cycle rhetoric and posturing about crime and justice reform.

December 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Second Circuit hints that sentence reduction might well be justified whenever guideline range is increased "significantly by a loss enhancement"

I am grateful to Harry Sandick for alerting me to this seemingly little (and easily overlooked) opinion handed down by a unanimous Second Circuit panel late last week.  Stephanie Teplin and Harry Sandick discuss the case in this thoughtful blog posting, and here are key passages from their coverage:

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level — a sentencing scheme for fraud that is “unknown to other sentencing systems” — required the district court to reconsider whether a non-Guidelines sentence was warranted....

Judge Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “use[s] loss amount as the predominant determination of the adjusted offense level for monetary offenses.”  However, he observed that “the Commission could have approached monetary offenses quite differently.  For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss.”

The “unusualness” of the Guidelines system, the Court held, can be considered by a sentencing judge under Kimbrough v. United States.  “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.”  The Court did not hold that the sentences were in error, but remanded for the district court’s reconsideration of the sentences....

Judge Newman has long been a skeptic of the Guidelines approach to sentencing.  In this short opinion, he cites the pre-Booker decision in United States v. Lauersen, 348 F.2d 329 (2d Cir. 2003), an opinion he authored at a time when the Guidelines were mandatory, except for downward departures.  Lauersen held that where the cumulative impact of overlapping Guidelines enhancements (in that case, for loss amount and for defrauding a financial institution of more than $1 million) resulted in an overly long sentence, the district court could downwardly depart.... 

In Algahaim, Judge Newman carries this concept forward to the more open-ended sentencing regime given to us by Booker, Gall and Kimbrough.  Many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.”  E.g., United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (Rakoff, J.).  Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record.  See ABA Criminal Justice Section, “A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes” (November 10, 2014) (last visited December 1, 2016).  To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement” leads to an unduly long sentence.

Because Judge Jon O. Newman was my very first boss as a lawyer (I served as his law clerk from 1993-94 starting just months after my graduation from law school), I am always partial to his opinions and especially as to his opinions about sentencing issues. And, as regular readers know, I am always partial to judicial opinions that thoughtfully explain whether and when the federal sentencing guidelines should or should not be followed. And so, perhaps my partiality is going to bubble over when I assert that Judge Newman is being especially astute and shrewd in his pro-discretion sentencing work in United States v. Algahaim, in part because the particulars of the loss enhancement in Algahaim are actually not all that major.

Specifically, in Algahaim, the two defendants who were appealing their convictions and sentences were subject to offense-level increases for loss of "only" 10 and 12 points  under USSG § 2B1.1(b)(1).  Though such loss enhancements certainly appear significant when added to a base offense level of 6, in many other fraud cases the loss enhancement under 2B1.1(b) can commonly add 16 or 20 or 24 or even up to 30 points.  Despite those realities, the Second Circuit in Algahaim has now called just a 10-level loss enhancement in a fraud case "significant" and also has said this enhancement is alone large enough to merit serious consideration of a below-guideline sentence.  For that reason, I would now expect lots of astute and shrewd future white-collar defendants throughout New York and elsewhere to be citing to Algahaim to bolster arguments for below-guideline sentences whenever the guideline range is moved up a lot by loss calculations.

December 4, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (3)

Saturday, December 03, 2016

Another detailed and depressing report on the harms of bad sentencing in the nation's capital

The Washington Post has run a series of articles under the title Second-Chance City seeking to thoroughly "examine issues related to repeat violent offenders in the District of Columbia." The latest lengthy article in the series, headlined "Second-chance law for young criminals puts violent offenders back on D.C. streets," tells a bunch of sad and sobering stories. It starts this way

Hundreds of criminals sentenced by D.C. judges under an obscure local law crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation’s capital.

The original intent of the law was to rehabilitate inexperienced criminals under the age of 22.  The District’s Youth Rehabilitation Act allows for shorter sentences for some crimes and an opportunity for offenders to emerge with no criminal record.  But a Washington Post investigation has found a pattern of violent offenders returning rapidly to the streets and committing more crimes.  Hundreds have been sentenced under the act multiple times.

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes.  The criminals have often repaid that leniency by escalating their crimes of violence upon release.

In 2013, four masked men entered the home of a family in Northeast Washington, held them at gunpoint and ransacked the house.  One of the invaders, Shareem Hall, was sentenced under the Youth Act. He was released on probation in 2015.  Almost exactly a year later, Hall and a co-conspirator shot a 22-year-old transgender woman, Deeniquia Dodds, during a robbery in the District, according to charging documents.  It is unclear who pulled the trigger.  Police said the pair were targeting transgender females.  Dodds died nine days later.  “You’re telling me you can come back out on the streets and rob again, hold people hostage again, kill again — because of the Youth Act?” said Joeann Lewis, Dodds’s aunt.

Hall is one of at least 121 defendants sentenced under the Youth Act who have gone on to be charged with murder in the District since 2010, according to The Post’s analysis of available sentencing data and court records.  Four of the slayings, including the killing of Dodds, occurred while the defendants could still have been incarcerated for previous crimes under mandatory minimum sentencing, and 30 of the killings took place while the suspects were on probation.

Youth Act offenders accounted for 1 in 5 suspects arrested on homicide charges in the District since 2010, a period that has seen a recent surge in homicides and growing public concern about repeat violent offenders.  The cycle of violence has been largely shrouded from public view or oversight. D.C. judges do not track the use of the law, which provides a collection of benefits to violent felons that experts say does not exist anywhere else in the country.

After a young adult is convicted of a crime, the Youth Act allows judges to decide whether the offender can benefit from rehabilitation and should receive special treatment.  The law gives felons a chance to have their convictions expunged from the public record if they serve out their sentences or complete their probation.  Because of the way the law was written, Youth Act offenders also can avoid mandatory prison time for certain violent gun crimes.  The Post also found that judges applying the Youth Act generally give lighter sentences across the board.

The law was enacted in 1985 during the mayoral administration of Marion Barry (D), at a time when jails were being filled with young men charged with drug crimes, in an attempt to protect African American youths from the stigma of lengthy prison sentences. “We have a value in this city that youthful offenders should be rehabilitated,” said D.C. Mayor Muriel E. Bowser. “But I don’t think anybody expects leniency for violent criminals.”

The judges declined The Post’s requests for interviews and also declined to comment about specific cases. In a written statement, the judges said they weigh many factors in sentencing, including the ages of offenders and the effect of their crimes on the victims. “In considering whether to sentence a young person under the Youth Act, generally judges are aware that a felony conviction can create lifelong obstacles to becoming a good and productive citizen,” wrote Lynn Leibovitz and Milton Lee, who are, respectively, the presiding judge and deputy presiding judge of the criminal division of the D.C. Superior Court.

December 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27)

Friday, December 02, 2016

"The Right to Redemption: Juvenile Dispositions and Sentences"

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

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems.  These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders.  In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing.  The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.  State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of ‘juveniles’ immaturity militates in favor of a right to redemption.  This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed.  The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted.  The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes.  The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions.  This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.

December 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?

Abc_dylann_roof1_wg_150716__16x9_992The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:

Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.

Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.

But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”

Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.

I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.

I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.

Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.

Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.

And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....

Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.

In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.

I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his her own inability to serve as his her own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.

A few of many prior related posts on prosecution of Dylann Storm Roof:

December 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, November 29, 2016

Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?

Washington_terry1The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning.  The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:

Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.

Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities.  I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC.  I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.

Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas.  As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69.  But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence.  In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).

I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation.  Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled.  (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.)  Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.

Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.  My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins.  But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess.  For Bobby James Moore, this is obviously now a matter of life and death.  But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?

November 29, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)