Monday, April 04, 2016

"Summary Injustice: A Look at Constitutional Deficiencies in South Carolina’s Summary Courts"

The title of this post is the title of this new report produced by National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) about low-level (in)justice in the low country. Here is a summary account via this press release of Summary Injustice:

In South Carolina, the bulk of criminal cases are low-level offenses heard in municipal and magistrate courts, collectively referred to as summary courts.  These courts often fail to inform defendants of the right to counsel, refuse to provide counsel to the poor at all stages of the criminal process, and force defendants who can’t afford to pay fines to instead serve time in jail.

“When you go to a summary court in South Carolina, you find yourself in a judicial netherworld where the police officer who made the arrest acts as the prosecutor, the judge may not have a law degree, and there are no lawyers in sight,” said Susan Dunn, legal director of the ACLU of South Carolina.  “By operating as if the Sixth Amendment doesn’t exist, these courts weigh the scales of justice so heavily against defendants that they often receive fines and jail time they don’t deserve.”

This report documents the constitutional violations observed by attorneys with NACDL and the ACLU in 27 different courts throughout the state during several weeks between December 2014 and July 2015, including multiple stories from defendants.  The U.S. Constitution guarantees that a person accused of a crime and who faces loss of life or liberty as punishment has the right to a lawyer even if he or she can’t afford one.

“Many, if not most, people will read this report and be shocked by the numerous and profound constitutional deficiencies in South Carolina’s summary courts as observed by NACDL and the ACLU since they began this research in 2014,” said longtime Rock Hill, South Carolina, criminal defense lawyer and NACDL Treasurer Chris Wellborn. “Sadly, as someone who has spent my career representing the criminally accused in South Carolina, I am only able to underscore how pervasively these courts have been disregarding the rights of the people of South Carolina, and that it’s been like this for decades.”

NACDL President E.G. “Gerry” Morris said: “While this important report, and a forthcoming second report to be released later this year, is focused on South Carolina, it is part of a larger initiative to study state level public defense delivery systems across the nation.  The ultimate goal is to identify and document weaknesses in different public defense delivery systems that must be remedied as well as to highlight strengths and successes in systems that can and should be replicated elsewhere.  More than 50 years after the Supreme Court’s landmark decision in Gideon v. Wainwright, the people of America are entitled to nothing less than to have their courts respect the very rights recognized and protected by the Constitution.  NACDL will not waver in its mission to shine the light brightly on systems where that is not happening, and to offer policymakers effective solutions to what is quite clearly a widespread problem of constitutional dimensions.”

April 4, 2016 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Lots of little SCOTUS criminal justice work to start April

April is always an exciting month for me as both a sports fan and a SCOTUS watcher: as a sports fan, I have the certain joys of the start of the MLB baseball season, the Masters, and the start of the "real" season in the NBA and NHL; as a SCOTUS watcher, I have the uncertain joys of anticipating the Justices winding down its current Term by perhaps handing down some big criminal justice opinions or cert grants.  And just as the MLB season is off to something of a cold April start — e.g., it was 39 degrees for the very first pitch yesterday in Pittsbugh, and today's Yankees game has already been postponed — so too is SCOTUS keeping it cool in the criminal justice arena at the start of April.

Specifically, the Justices kicked off one of my favorite months with three little criminal justice developments:

  1. A cert grant in Pena-Rodriguez v. Colorado to consider "whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury";

  2. A per curiam opinion in Woods v. Etherton to summarily reverse on AEDPA defenence grounds a decision by the Sixth Circuit in favor of a state habeas petitioner;

  3. A unanimous opinion in Nichols v. US to hold that SORNA did not require a sex offender to update his registration in Kansas once he departed the State for the Phillipines. 

If I did not have to obssess over a number of other matters this morning (including whether I managed to acquire any fantasy baseball sleepers during my draft this past weekend), I might be able to find some sleeper SCOTUS story to discuss within these developments. But absent readers helping me identify something big in these seemingly little developments, I am likely to move on to other bloggy matters (such as continuing to speculate how Justice Scalia's untimely demise has been impacting the Court's work in criminal justice cases).

April 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, April 03, 2016

"Subconstitutional Checks"

The title of this post is the title of this great-looking new paper authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Constitutional checks are an important part of the American justice system.  The Constitution demands structural checks where it provides commensurate power.  The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct.  However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.

Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another.  The need for sub constitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state.

As a result, the lack of structural constitutional checks in criminal law has lead to constitutional dysfunction.  Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct.  This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.

April 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

A more positive spin on clemency developments and more positive aspects

LisaRichRegular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:

A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency.  I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons.  First, all of us, including the President and White House staff saw and heard what hope is all about.  We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment.  We heard people who genuinely want to make their communities and their lives better, stronger, and happier.  I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events.  As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions.  Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them.  These students are the future policymakers and advocates.  To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.

April 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Friday, April 01, 2016

Federal district judge astutely asks feds for accounting of political corruption sentences before high-profile NY pol sentencing

As reported in this New York Post article, headlined "Judge in Shelly Silver’s case wants to know how much time crooked pols usually get," a federal district judge has ordered federal prosecutors to help her discharge her post-Booker sentencing duties under 18 USC 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Here are the interesting details:

Manhattan federal Judge Valerie Caproni wants a chart outlining sentences for previously convicted New York politicians ahead of Sheldon Silver’s sentencing next month.  In an order to prosecutors filed Thursday, Caproni asked for the information to “consider the need for unwarranted disparities between similarly situated defendants.”

The judge wants the government to include in its sentencing submission paperwork “a summary chart containing the sentences imposed on elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years to the extent that information is not unduly burdensome to obtain,” the one-page order says.

Prosecutors will have their hands full: Dozens of New York politicians have been convicted of charges varying from bribery to mail fraud and racketeering to tax evasion, prosecutors said.

Ex-City Councilman Dan Halloran was slapped with a stiff 10-year prison sentence for masterminding a failed $200,000 bribery plot to rig the 2013 mayoral election for then-state Sen. Malcolm Smith.  Meanwhile, ex-Senate Majority Leader Smith, who was also busted, got seven years behind bars.

And Hiram Monserrate, the Democratic state senator who looted nearly $100,000 in taxpayer money to win higher office, was sent away for two years in 2012 after pleading guilty.  Another disgraced ex-state senator, Pedro Espada Jr., received a five-year sentence for bilking a taxpayer-funded nonprofit to pay for his lavish lifestyle.

Silver faces up to 130 years behind bars after he was convicted in November of corruption charges.  The 72-year-old ex-Assembly speaker will likely receive far less at his sentencing April 13.

Prosecutors’ sentencing submission is due by April 6, court records show. Ex-Senate Majority Leader Dean Skelos — who was convicted with his son, Adam, of bribery and corruption just weeks after Silver — also faces 130 years.  The Skeloses will be sentenced April 28.

Based on the quote of this article, it seems that Judge Caproni has asked not merely for sentencing details on convicted New York politicians, but all "elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years." I am guessing there could be hundreds of politicians nationwide who fit into this category. I would be especially interested to see what this summary chart looks like, and I hope to be able to post it on this blog whenever it becomes publicly available.

April 1, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, March 31, 2016

A telling, but still unsatisfying, SCOTUS discussion of retroactivity during oral argument in Welch

As previewed in this post, yesterday the Supreme Court heard oral argument in Welch v. United States, which is principally concerned with the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.  I am deeply interested in this Welch case, not only because I helped with this law professor amicus brief in Welch, but also because I have authored this law review article to explain my view that traditional SCOTUS retroactivity doctrines — so called Teague doctrines — developed with unique concern for the importance of preserving the finality of convictions are not necessarily the best was to examine whether and when a new sentencing rule ought to apply retroactivity.

Helpfully, Rory Little has followed up his terrific Welch oral argument preview post at SCOTUSblog with this spot-on oral argument review post titled "Argument analysis: A likely decision in favor of retroactivity?."  Having read the full argument transcript in Welch (which is available here), I fell well positioned to assert that Rory's analysis is a much better and more enjoyable read, and it includes these essential insights at its start and end:

While it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions. And as I explained in my preview, that result is likely, although not certain, to result in substantial sentencing reductions for a significant number of convicted federal defendants....

The law of retroactivity presents intellectual conundra that may never be fully settled.  The decision in this case is likely to be simply one more precedent in the wavering doctrinal line.  We will never know what Justice Harlan, or Justice Scalia, thinks of it.  But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.

Though I am no longer a young law professor, the intricacies of retroactivity doctrines as articulated in Teague and its progeny are a source of frustration and concern for me.  And the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case (as they have recently show they are wont to do in Montgomery v. Louisiana decided a few months ago).  As I suggest in this law review article, applying traditional Teague doctrines in retroactivity cases that involving only sentencing issues necessarily involves banging a square equitable peg into and round Teague doctrinal hole.  And yet, after reading the Welch transcript, it seems the Justices are for now content to just keep banging away.

March 31, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"

In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  Today I received an email concerning the great new work of this great new initiative.  Here is part of this email reporting on this new report from FPP:

As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment.  The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.

The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country.  By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.

“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”

Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...

“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”

March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud"

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

Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines.  The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime.

This Article examines the role of the “intended loss” calculation.  The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability.  By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable.  Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct.

Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability.  It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.

March 31, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

Wednesday, March 30, 2016

Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP

A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:

Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1).  This crime carries a mandatory statutory penalty of either death or life imprisonment.  The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments.  See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).

The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence.  For the reasons set forth below, we affirm the district court’s decision.

March 30, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Fascinating SCOTUS Sixth Amendment splintering in Luis v. United States

The Supreme Court this morning handed down an opinion this morning that is fascinating based simply on the line-up of Justices: "BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion." This line-up ruled for the criminal defendant in Luis v. United States, No. 14-419 (S. Ct. March 30, 2016) (available here), and here is how Justice Breyer's plurality opinion starts:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her frompaying her lawyer.  She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

March 30, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

"Sentencing Reductions versus Sentencing Equality"

The title of this post is the title of this interesting and timely new paper by Susan Klein now available via SSRN.  Here is the abstract:

The Sentencing Reform Act of 1984 was enacted by an odd conglomeration of Democrat and Republican who agreed that federal sentences should be based upon relevant offender and offense characteristics, not including such things as race, gender, geography, ideological bent of the sentencing judge, or citizenship. That goal has become lost and less relevant in today’s world of draconian and mandatory minimum sentencing, especially in the drug trafficking, child pornography, and fraud arenas. Mass incarceration has run rampant. Sentences are so out-of-whack with most basic principles justice that the fact that female offenders may receive slightly lower prison terms than their male counterparts should no longer be the very top of our reform agenda.

This is not to suggest that scholars and the public shouldn’t be concerned with sentencing disparity, especially based on race. However, the disparity between federal and state sentences is so much wider (and occurs so much more frequently) than the disparity among similarly-situated federal offenders that the latter appears less of a significant issue in absolute terms. Whatever reform capital policy-makers and scholars retain should be poured into championing alternatives to criminalization (such as fines, drug treatment, and apologies) and alternatives to long prison terms (such as probation and parole). Reforms must focus on discovering what offenses we could safely decriminalize, and what programs are effective in keeping individuals out of prison in the first place (or in curbing recidivism once incarceration has occurred).

If giving judges more discretion at sentencing means lower average prison terms, this will probably rebound to the benefit of our minority populations as a whole, even if it might mean that in particular cases minority defendants receive slightly higher sentences for the same conduct as their white counterparts. Likewise, if sentencing, parole, and probation decisions based upon “risk assessment” leads to lower overall incarceration rates, we may have to tolerate this even if it generates higher risk numbers for certain minority offenders. Critics of every substantive criminal-law and sentencing reform proposal need to remember the big picture, and not lose sight of the forest of mass incarceration for the trees of unwarranted sentencing disparity.

March 30, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, March 29, 2016

Still more ugly details on the still ugly realities of the federal clemency process

Regular readers are probably tired of hearing me complain regularly about the failure of the Obama Administration to fix the many problems surrounding the modern federal clemency process.  But this new USA Today article, headlined "Former administration pardon attorney suggests broken system in resignation letter: Former Pardon Attorney Deborah Leff said she was unable to talk to the White House about pardons," provides still more grist for my clemency kvetching mill. Here is how the piece starts:

The Obama administration instructed Justice Department attorneys to neglect applications for presidential pardons to give priority to the Justice Department's initiative to release low-level offenders from prison, the former pardon attorney said in her resignation letter early this year. That inaction was one of several issues that former Pardon Attorney Deborah Leff cited in her letter, which was obtained by USA TODAY after making a Freedom of Information Act request. Leff resigned in January after less than two years as the official responsible for making clemency recommendations for the president.

Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency. Leff wrote that the administration's focus on the clemency initiative at the expense of traditional pardons and commutations "means that the requests of thousands of petitioners seeking justice will lie unheard."

"This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent," she wrote.

It's the job of the U.S. pardon attorney to investigate all of those cases and make a recommendation to the deputy attorney general, who then forwards it to the White House Counsel's Office and, ultimately, the president. Because the pardon attorney advises the president on sensitive cases, the process is cloaked in secrecy, and officials rarely discuss the process publicly. So Leff's letter offers a rare glimpse into how the pardon office works in the Obama administration. Unlike in previous administrations, where pardon office staffers and the White House had routine conversations, Leff said she was denied "all access to the White House Counsel's Office," which is the last step for a pardon application before being approved or denied by the president.

She said Deputy Attorney General Sally Quillian Yates had overruled her recommendations in an increasing number of cases — and that in those cases, the president was unaware of the difference of opinion. "I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views," she said.

And she said the Justice Department had not made good on its promise to put the required resources behind the clemency initiative. That initiative, part of a broader push for sentencing reform, was designed to use the president's constitutional pardon power to release federal inmates who would have received shorter sentences had they been sentenced under today's more lenient guidelines. It applies mostly to non-violent drug offenders serving sentences of 10 years or more, with good behavior while in prison.

March 29, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, March 28, 2016

NY Times laments "A Modern System of Debtor Prisons"

The New York Times today ran this editorial headlined "A Modern System of Debtor Prisons." Here are excerpts:

Court systems commonly raise revenue by punishing people who commit minor offenses with fines, fees and penalties that can pile up, driving them into poverty. Worse still, state and local governments often jail people illegally for nonpayment, putting them at risk of losing their jobs and homes.

The Justice Department responded forcefully to this problem in Ferguson, Mo. This month, the racially troubled town agreed to a federal plan to root out racist and unconstitutional practices in its Police Department and courts. The case put other state and local governments on notice that they, too, could be held accountable for operating court systems that violate the constitutional rights of people charged with nonpayment of fines.

The guidelines issued by the Justice Department’s Civil Rights Division explain in detail what courts can and cannot do when enforcing fine collections. The department says state and local courts have an obligation to inquire about a person’s ability to pay fines and fees before jailing them for nonpayment. The Supreme Court has repeatedly ruled that imprisoning a person because he or she is too poor to pay a fee amounts to “punishing a person for his poverty” and violates equal protection under the 14th Amendment....

The danger of unjust practices is magnified when courts hire private companies to collect court fines. These companies often operate without oversight, which leaves them free to adopt abusive tactics and bleed people with fees and penalties. The Justice Department makes clear that courts can be held accountable for constitutional violations committed by the firms they hire. The Ferguson reform plan is a reminder of how far state and local courts have strayed from the law in this area, and it provides a clear route to restoring lost justice for the indigent.

March 28, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"

I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing.  Here are the event/paper details sent my way:

Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model.  The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.

The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world.  Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population.  This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.

The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment.  We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes.  Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.

Workshop Contacts: andré douglas pond cummings (ADCummings @ indianatech.edu), Adam Lamparello (AXLamparello @ indianatech.edu) and Yvonne Lindgren (YFLindgren @ indianatech.edu)

Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont (LGLaMont@indianatech.edu) with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.

Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.

March 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

A week of extraordinary reporting and commentary via The Crime Report

Regularly readers are perhaps used to me regularly praising The Crime Report for its impressive original reporting and interesting commentaries on an erray of criminal justice issues. This post is another in this series, prompted by the fact that I have been meaning to do distinct posts about nearly a dozen pieces I saw over at TCR just over the last (too busy week). I remain hopeful I will get a chance to blog separately about some of the pieces below that I find more interesting or important, but for now I am going to have to be content to urger everyong to click through a read everyone of these linked piece:

March 28, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Time, Death, and Retribution"

The title of this post is the title of this notable new article by Chad Flanders now available via SSRN. To call this article timely and just dead on is both accurate and punny. Here is the abstract:

The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is.  All Lackey claims brought by death row inmates have failed, but not for want of trying.  The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences.  I agree with other scholars that this argument is incorrect.  However, even if it is true that prisoner choice cannot make an otherwise unconstitutional sentence constitutional, Lackey claims can — and should — fail if the courts adopt a certain theory of retribution, what I call “intrinsic desert retribution”.  Examining that type of retribution, distinguishing it from other retributive theories, and showing how intrinsic desert retribution can refute most Lackey claims, is one of this article’s major contributions. In doing so, it breaks with most of the scholarly literature, which tends to be sympathetic to Lackey claims.

But the fact that Lackey claims may survive given a certain theory of retribution does not make that theory something the state may permissibly pursue.  And this is the second major contribution of the article: to make the case that retribution may in fact not be a permissible state purpose.  In short, Lackey claims do not fail because they are too strong — they fail because they are not strong enough.  The Supreme Court has traditionally held that the state may permissibly put someone to death because of retribution.  But the Court has also said, in other contexts, that the state may not pursue certain aims.  The state cannot promote religion, for one; nor can it adopt policies based solely on “animus” against a certain class of persons.  My article suggests that when the state adopts retribution as a goal in capital punishment, and pursues that goal even after years of delay, then retribution starts to look more and more like something that, while it may be morally right, cannot be a goal the state can legitimately pursue.

March 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, March 27, 2016

Effective previews via SCOTUSblog before an exciting upcoming SCOTUS week for sentencing fans

This coming week brings two interesting Supreme Court cases about sentencing issues via Betterman v. Montana, to be argued on Monday, March 28, and Welch v. United States, to be argued on Wednesday, March 30.  I will likely have plenty to say about both cases after the oral arguments; helpfully, two great pre-argument previews done by Rory Little over at SCOTUSblog provides an opportunity to gear up for this year's SCOTUS sentencing March madness.  Here are links to, and the start of, these SCOTUSblog previews:

Argument preview: A “clean” constitutional question – does the speedy trial right apply to sentencing?

The Sixth Amendment provides various rights for “all criminal prosecutions.”  Among those listed is “the right to a speedy and public trial.” Next Monday, March 28, in Betterman v. Montana, the Court will consider whether the “speedy” part of the right applies to a criminal defendant’s sentencing that happened about fourteen months after he was convicted by guilty plea.  The briefing in the case is very good, and Betterman is represented by an experienced appellate advocate (Fred Rowley, making his first Supreme Court argument), as well as the UCLA Supreme Court Clinic.  Montana’s solicitor general, Dale Schowengerdt, will argue for the state, and Assistant to the U.S. Solicitor General Ginger Anders will argue on behalf of the United States as an amicus in support of Montana.

Argument preview: Complex retroactivity questions arising from Justice Scalia’s void-for-vagueness decision last Term

It seems increasingly clear that the current Supreme Court Term will have to be headlined “Justice Scalia is sorely missed.” Next Wednesday, March 30, the Court will hear argument in yet another criminal case in which the unexpected passing of Antonin Scalia on February 13 will leave an unanswered “hole” in the Court’s deliberations. Last June, Justice Scalia wrote the opinion in Johnson v. United States, in which, after an eight-year campaign originating in Justice Scalia dissents, a majority declared the “residual clause” of a federal repeat-offender statute unconstitutionally vague. The question quickly arose whether that ruling should be applied to federal cases on collateral review, even though they were “final” before Johnson was decided. That is, should Johnson apply “retroactively”? To answer that question, the Court chose (from among others) the petition in Welch v. United States. (On a tangential note, some courts of appeals have differed on the question of retroactivity for “initial” versus “successive” collateral review requests; this case will apparently answer for both contexts.)

Interestingly, the federal government has told the Court that it agrees with Gregory Welch that Johnson should be fully retroactive, and that Welch’s case should be remanded for resentencing. Thus, the Court has appointed an experienced amicus, Helgi Walker (a former clerk to Justice Clarence Thomas and partner at Gibson Dunn), to defend the judgment below, and the amicus brief, while likely controversial, is excellent.

March 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, March 25, 2016

Florida has first capital case head to jury sentencing after Hurst-required reforms

Roughly 10 weeks after the Supreme Court declared unconstitutionally Florida's death sentencing procedures in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here), a group of jurors have the chance to create a new capital test case as to whether the Florida's now-revised death sentencing procedures can survive another constitutional attack.  This local article, headlined "Hawkins test of new sentencing rules," explains:

For the first time since the Florida Legislature revised capital punishment sentencing guidelines — requiring a favorable vote by 10 of 12 jurors — a defendant could get the death penalty.

Antowan Hawkins was convicted Thursday of felony first-degree murder, robbery, arson, tampering with physical evidence and grand theft of a motor vehicle in the death of 24-year-old Aaron Goodwin. Today, jurors will return to determine Hawkins' sentence.

But prior to his week-long trial, his attorneys filed motions calling the new jury guidelines unconstitutional. “This scheme leaves Florida as one of only two states that authorize the imposition of the death penalty on less than a unanimous jury verdict,” Hawkins attorney David Collins wrote in a March 21 filing. “This scheme is contrary to evolving standards of decency regarding the humane imposition of capital punishment.”

Jurors Thursday found Hawkins guilty of felony murder instead of premeditated murder, a decision that could play into the sentencing guidelines introduced in court today. "That can be perceived that you’re not quite sure who is actually the one who killed Mr. Goodwin," said Chuck Collins, Hawkins' attorney, during his opening statement. "Are you prepared to sanction the execution of someone not knowing beyond a reasonable doubt that he is the actual person who killed him?"

Prosecutors said in court Friday Hawkins took measures to conceal the killing of Goodwin by setting his South Adams Street sneaker shop on fire and driving his car to Jefferson County to set it ablaze. Testimony in the trial also suggested Hawkins may have gone to the store prior to the crime. "We see a pattern of destroying evidence to avoid being caught," said Assistant State Attorney for the 2nd Judicial Circuit Eddie Evans. "There was evidence the victim had seen the defendant before."

UPDATE: If you click through to the local article linked above, it now reports that jurors sentenced this capital defendant to life in prison without the possibility of parole after only an hour of deliberation. Consequently, some other case is going to become the test case for Florida's new capital sentencing procedures.

March 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, March 24, 2016

Fascinating issues emerging in run up to federal sentencing of former House Speaker Dennis Hastert

This new Politico article, headlined "New Hastert accuser emerges: Judge acknowledges that the case against the former House speaker involves alleged sex abuse," flags some of the notable issues emerging as the federal sentencing of a notable former member of Congress approaches. Here are the details:

A previously unidentified victim of alleged sexual abuse by former House Speaker Dennis Hastert has come forward to federal prosecutors and may seek to testify next month when Hastert faces sentencing in federal court in Chicago. The new accuser, labeled as "Individual D" in court papers, is not the "Individual A" to whom Hastert agreed to pay $3.5 million, setting off a series of events that led to the former speaker pleading guilty to illegally structuring $900,000 used in payments to the man.

Up until now, public court records and courtroom proceedings in the case have danced around the fact that the case stems from alleged sexual impropriety, reportedly from Hastert's years as a teacher and wrestling coach. But U.S. District Court Judge Thomas Durkin gave up that pretense Tuesday and made clear that the case is linked to the widely reported allegations of sexual misconduct.

"Let's not beat around the bush. If 'Individual D' wants to come in and talk about being a victim of sexual abuse, he's entitled to do so because that informs my decision about the history and characteristics of the defendant. It's that simple," Durkin said, according to a transcript POLITICO reviewed of a brief court hearing.

Hastert entered his guilty plea last October, acknowledging that he withdrew nearly $1 million in cash in increments of less than $10,000 to avoid reporting requirements, paying the money out to a longtime associate. The indictment against Hastert doesn't name the person he was paying, referring to him only as "Individual A."

Durkin agreed Tuesday to delay Hastert's sentencing by about three weeks at the government's request so that a witness who may wish to testify at the hearing can appear. "Individual D" is "not 100 percent certain he wants to [testify] but has been moving in that direction," prosecutor Steven Block told the judge.

The government apparently did not know of "Individual D" when the indictment was filed against Hastert last May. But sources said investigators were aware of at least two living victims at that time. Since the indictment, Hastert has been mum about the sexual abuse allegations that have swirled in the press. However, Hastert defense attorney John Gallo said Tuesday that the former speaker doesn't plan to contest "Individual D"'s claims.

Durkin also said he's willing to hear at sentencing from a Montana woman, Joanne Burdge, who claims her late brother had a sexual relationship with Hastert while her brother was an equipment manager on the wrestling team Hastert coached. "If the sister of a victim of sexual abuse wants to come in and talk about her interactions with her brother and talk about that, that is something that would inform my decisions about the history and characteristics of the defendant," the judge said.

Hastert's lawyers opposed delaying the hearing and said the proposed witnesses aren't victims under federal law because the crime Hastert pled guilty to was a bank reporting violation. "They're not classic victims, and so they have no statutory entitlement to appear," Hastert attorney Thomas Green said during Tuesday's hearing. He also said their submissions should be taken in writing, not through live testimony.

But Durkin rejected that position. "If they want to come in and they're willing to testify as live witnesses, they're absolutely entitled to do so, and the government's entitled to call them as live witnesses," the judge said.

In an interview, Burdge confirmed her desire and plan to speak at the sentencing. "I'm going to it. I feel like it's crossing the finish line and I need to do it," she told POLITICO Wednesday. "I've waited over 30 years for this."

In Hastert's plea deal, the defense and prosecutors agreed that sentencing guidelines call for the former speaker to receive between zero and six months in custody. However, after his guilty plea last year, the 74-year-old Hastert suffered a stroke and sepsis. Given the health issues, it's unclear whether Durkin will sentence Hastert to any jail time at all.

Some prior related posts:

March 24, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, March 23, 2016

"Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"

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

After white supremacist Dylann Roof killed nine African-Americans at a Charleston, South Carolina church, authorities declined to refer to the attack as terrorism.  Many objected to the government’s apparent double standards in its treatment of Muslim versus non-Muslim extremists and called on the government to treat the massacre as terrorism. Yet the government has neither charged him with a terrorist offense nor labelled the attack as terrorism.

This Article argues that although the government was unable to charge him with terrorist crimes because of the lack of applicable statutes, the Charleston Massacre still qualifies as terrorism under federal law.  Roof’s attack clearly falls under the government’s prevailing definition of domestic terrorism.  It also qualifies for a terrorism sentencing enhancement, or at least an upward departure from the sentencing guidelines, as well as for the terrorism aggravating factor considered by juries in deciding whether to impose the death penalty.

Labelling Roof’s attack as terrorism could have several important implications, not only in terms of sentencing, but also in terms of government accountability, the prudent allocation of counterterrorism resources, balanced media coverage, and public cooperation in preventing terrorism.  For these reasons, the Article contends that the government should treat the Charleston Massacre, and similar ideologically-motivated killings, as terrorism.

The Article also makes two policy suggestions meant to facilitate a more consistent use of the term terrorism. First, the Article proposes a new federal terrorism statute mirroring hate crime statutes, which would enable every terrorist to be charged with a terrorist offense.  Second, simplifying the definition of terrorism to encompass any murder or attempted murder meant to advance an ideology would avoid the obfuscation invited by current definitions. However, even without such changes, the government still has the authority and responsibility to treat attacks such as Roof’s as terrorism for nearly all purposes.

A few prior related posts:

March 23, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

State judge in Missouri decides state DOC purposely violated state law to avoid execution drug disclosure

As reported in this local article, headlined "Missouri Corrections Department Violated Sunshine Law In Execution Case, Judge Rules," a state judge reached some sharp conclusions about what the state DOC failed to show concerning execution drugs in the Show Me state. Here are the details:

The Missouri Department of Corrections purposely violated the state’s Sunshine Law when it refused to turn over records revealing the suppliers of lethal injection drugs for executions, a state court judge ruled late Monday. Cole County Circuit Judge Jon E. Beetem’s decision came in three parallel cases, including one brought by five news organizations: The Kansas City Star, The St. Louis Post-Dispatch, the Springfield News-Leader, The Guardian and the Associated Press.

Beetem last July ordered the DOC to disclose the names of the pharmacies from which it buys lethal injection drugs. But the issue remained moot while he reviewed the records in question to see if they needed to be redacted in order to protect the identities of members of the execution team.

On Monday, Beetem ruled that while an exemption in the Sunshine Law protects the identities of the doctor and nurse who are present during the execution as well as non-medical personnel who assist with the execution and are also present, it does not protect the identity of the pharmacists who supply the execution drugs. He ordered the DOC to produce those records without redactions. He also ordered the DOC to pay the plaintiffs’ costs and attorneys’ fees. In the news organizations' case, that amounted to $73,335.

The state has already indicated it plans to appeal. The Department of Corrections did not immediately return a call seeking comment on Beetem's decision. "At this point, it has cost the state of Missouri more than $100,000 to assert a frivolous position," said Kansas City attorney Bernard Rhodes, who represented the news organizations. "At what point will the state realize that they're wrong and at what cost to the taxpayers will it take before the state realizes they are wrong?"

The other lawsuits challenging officials' refusal to provide information about the state's execution protocols were filed by former Missouri legislator Joan Bray, a death penalty opponent, and by the Reporters Committee for Freedom of the Press, the American Civil Liberties Union and Christopher S. McDaniel, formerly of St. Louis Public Radio.

Missouri, like other states, has had difficulty finding lethal injection drugs after European and American drug makers began refusing to provide them. The state has resorted to using largely unregulated compounding pharmacies, often keeping the sources of the drugs secret. In their lawsuit, the five news organizations said that public disclosure of the source, quality and composition of the drugs “reduces the risk that improper, ineffective, or defectively prepared drugs are used; it allows public oversight of the types of drugs selected to cause death and qualifications of those manufacturing the chosen drugs; and it promotes the proper functioning of everyone involved in the execution process.”

March 23, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

Tuesday, March 22, 2016

"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"

The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:

Ohio has a mass incarceration crisis.  There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages.  And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems.  We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.

Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond.  People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction.  Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.

The result is a system that is costing our state in every sense of the word.  Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low.  In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place.  Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population.  Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.  

State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled.  In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86).  This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails.  While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.

The time for modest, incremental steps is over.  We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment.  We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake.  We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.

Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws.  Once again, state leaders have invited members of that committee to use this opportunity to change our justice system.  However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee.  Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language.  Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration.  It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.

March 22, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list

As reported in this local article, a "federal judge has blocked Nebraska from putting a 13-year-old boy who moved here from Minnesota on its public list of sex offenders." Here is more about this notable ruling:

Senior U.S. District Judge Richard G. Kopf said if the boy had done in Nebraska exactly what he did in Minnesota he would not have been required to register as a sex offender "and he would not be stigmatized as such." "It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska," the judge wrote in a 20-page order.

In Nebraska, lawmakers opted to exclude juveniles from the Nebraska Sex Offender Registration Act unless they were prosecuted criminally in adult court, even though it meant losing thousands in federal funding. But the way the law is written made it appear that all sex offenders who move to Nebraska must register.

When the Minnesota boy in this case moved here to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law....

In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there ordered him to complete probation, counseling and community service, and his name went on a part of that state's predatory offender list that is visible only to police. Even before that, the boy had moved to Nebraska to live with relatives.

In August 2014, the Nebraska probation office notified his family he was required to register under the Nebraska Sex Offender Registry Act or could be prosecuted. That same month, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.

In Monday's order, Kopf concluded that the boy wasn't required to register in Minnesota because he was adjudicated in a juvenile court, not convicted in adult court, so Nebraska's act doesn't apply. He cited Nebraska Juvenile Code, which specifically says juvenile court adjudications are not to be deemed convictions or subject to civil penalties that normally apply. An adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.

Kopf's order said it was apparent that the purpose was to identify people guilty of sex offenses and to publish information about them for the protection of the public. "It is equally apparent that the Nebraska Legislature has made a policy determination that information regarding juvenile adjudications is not to be made public, even though this has resulted in the loss of federal funding for non-compliance with (the federal Sex Offender Registration and Notification Act)," he said.

Late Monday afternoon, Omaha attorney Joshua Weir said the boy's grandmother was so excited when he called with the news she had to pull over in a parking lot. "They were very, very relieved," he said. Weir said the boy is a healthy, happy kid now and flourishing in school. "It would've been a tragedy if he would have been branded a sex offender," he said. "That's something that sticks with you for the rest of your life."

The state could choose to appeal the decision within the next 30 days. 

March 22, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, March 20, 2016

High-profile NYC cop-killer getting off death row spotlights continued challenges SCOTUS jurisprudence

This new AP article, headline "NY Killer Off Death Row as Definition of Disabled Gets Tweak," reports on a notable capital ruling in a high-profile federal capital case and details how the case taps into broader issues surrounding the Supreme Court's Eighth Amendment limits on the application of the death penalty. Here are the details:

Prosecutors say Ronell Wilson is a calculating murderer. Since his imprisonment for killing two New York City police detectives, he has been able to dash off emails, memorize passages from books and seduce a female guard.  But Wilson's lawyers were able to convince a judge that he is a person of such a low intelligence that he can't function in society, and therefore can't legally be put to death.

Wilson, 32, and others like him are at the center of a debate over how to enforce a nearly two-year-old U.S. Supreme Court ruling that adds more specificity to the concept that it is cruel and unusual punishment to execute killers who are intellectually disabled.  It says courts should go beyond mere IQ scores to consider the person's mental or developmental disabilities.  A federal judge in New York who revisited Wilson's case based on the ruling tossed out his death sentence, just three years after finding that Wilson's IQ score was high enough to make him eligible to be executed.

A similar review led a judge in California last November to reduce a death sentence given three decades ago to Donald Griffin, a man who raped and murdered his 12-year-old stepdaughter.  A third appeal based on the ruling, that of a Virginia serial killer with a borderline IQ score, failed. Alfredo Prieto was executed in October.

Legal scholars say similar death row decisions are likely to follow, depending on how the high court's ruling is applied around the country.  "We should see courts more carefully considering whether defendants have an intellectual disability ... that doesn't mean we will," said Robert Dunham, the executive director of the nonprofit Death Penalty Information Center.

Wilson is a case study in the difficulty of determining who fits the court's definition of someone too intellectually limited to qualify for capital punishment....  U.S. District Court Judge Nicholas Garaufis said in his ruling Tuesday that he had no sympathy for Wilson and also doubted most clinicians would consider him disabled.  But he said he had "significant deficits in adaptive functioning" - enough to make him ineligible for the death penalty.  Garaufis imposed a new punishment of life in prison.

March 20, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Making an empirical case for the relative efficacy of post-Plata realignment in California

A trio of criminologists make a data-driven case for some positive aspects of California's experiences with realignment in this Washington Post opinion piece headlined "Releasing low-level offenders did not unleash a crime wave in California."  Here are excerpts (with a link to the report that provides the empirical basis for its claims):

Some fear that reducing sentences for nonviolent crimes and letting low-level offenders back on the streets — key components of prison reform — could produce a new and devastating crime wave.  Such dire predictions were common in 2011 when California embarked on a massive experiment in prison downsizing.  But five years later, California’s experience offers powerful evidence that no such crime wave is likely to occur.

In 2011, the Supreme Court ruled that California’s wildly overcrowded prisons were tantamount to cruel and unusual punishment and ordered the state to reduce its prison population by some 33,000 people in two years.  In response, the state enacted the controversial California Public Safety Realignment law, known in legislative shorthand as AB 109.

With a budget of more than $1 billion annually, “realignment” gave each of the state’s 58 counties responsibility for supervising a sizable class of offenders — the “triple nons,” or non-serious, nonviolent, non-sex offenders — formerly housed in state prisons. Each county received unprecedented flexibility and authority to manage this population as it saw fit.

Recently, we brought together a group of distinguished social scientists to do a systematic, comprehensive assessment of California’s prison downsizing experiment.  The results, published this month in the Annals of the American Academy of Political and Social Science, show that California’s decision to cede authority over low-level offenders to its counties has been, for the most part, remarkably effective public policy and an extraordinarily rich case study in governance....

To answer questions about the relationship between prison reform and crime rates, we not only compared statewide crime rates before and after the downsizing but also examined what happened in counties that favored innovative approaches vs. those that emphasized old-fashioned enforcement.

Clearly, our most important finding is that realignment has had only a very small effect on crime in California. Violent crime rates in the state have barely budged.  We’ve seen no appreciable uptick in assaults, rapes and murders that can be connected to the prisoners who were released under realignment.  This makes a lot of sense when you think about it; by and large, these offenders were eligible for release because of the nonviolent nature of their crimes.

On the other hand, a small uptick in property crime can be attributed to downsizing, with the largest increase occurring for auto theft.  So is this an argument against realignment and against prison reform more broadly?  We think not. The cost to society of a slight increase in property crime must be weighed against the cost of incarceration.

Take the example of auto theft. Our data suggest that one year served in prison instead of at large as a result of realignment prevents 1.2 auto thefts per year and saves $11,783 in crime-related costs plus harm to the victims and their families. On the other hand, keeping someone behind bars for a year costs California $51,889. In purely monetary terms — without considering, say, the substantial economic and social hardship that imprisonment can create for prisoners’ children and other relatives — incarcerating someone for a year in the hope of preventing an auto theft is like spending $450 to repair a $100 vacuum cleaner.

Turning to the question of which counties’ strategies were most successful, we have another important early finding: Counties that invested in offender reentry in the aftermath of realignment had better performance in terms of recidivism than counties that focused resources on enforcement.  As other states and the federal government contemplate their own proposals for prison downsizing, they should take a close look at what these California counties are doing right.

I have long been saying that California is a critical state to watch in the sentencing reform discussion, and I am pleased to see that a "group of distinguished social scientists" have so far concluded that the state's realignment experiences in the wake of the Supreme Court's Plata "has been, for the most part, remarkably effective public policy." But, critically, thanks to voter initiatives, California's recent sentencing reform efforts have not been confined to realignment: in 2012, California voters passed reforms to the state's three strikes laws via Prop 36, and in 2014 California voters passed reforms to what crimes are treated as felonies via Prop 47. And, notably, though some in law enforcement were quick to complain after AB 109 that realignment was responsible for a uptick in property crimes in the state, of late the focus of crime concerns and criticism has been Prop 47.

As I have repeatedly said in this space and others, I think it is especially problematic that California does not have the help of a independent sentencing commission that could and should seek to track and assess all these moving sentencing reform parts in the state.  In the absence of such a body, we all will have to rely on empirical and advocacy work done by outside researchers and policy groups concerning the effects of sentencing reform on the west coast.

March 20, 2016 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Saturday, March 19, 2016

"Voices on Innocence"

The title of this post is the title given to a collection of short essays by a number of notable authors now available at this link via SSRN. Here is the abstract for the collection:

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system — innocence.  Innocence is an issue that pervades various areas of research and influences numerous topics of discussion.

What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing?  What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations?  What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless.  As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future.

This article is a collection of short essays from some of those in attendance — essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence.  Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred in the summer of 2015. As was the case at the roundtable event, the ideas expressed in these pages begins a journey into an issue with many faces and many paths forward for discussion, research, and reform.

March 19, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, March 18, 2016

"How many times should a state be able to try to execute someone without running afoul of the Constitution?"

The question in the title of this post is the first line of this notable new commentary authored by Austin Sarat concerning the work of the Ohio Supreme Court  in Ohio v. Broom (previously discussed here).  Here is more of the commentary:

[T]he Ohio Supreme Court ruled on Wednesday that neither the federal nor the state constitution forbids Ohio from trying to execute someone more than once.  While this ruling may set up another opportunity for the U.S. Supreme Court to consider the constitutionality of capital punishment, it nonetheless allows the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again.  This should shock and trouble those who support capital punishment as well as those who oppose it....

On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and murder, was brought to Ohio's death chamber where he was to be executed by lethal injection.  His executioners repeatedly attempted to insert an intravenous line into Broom's arms and legs.  As they did so, Broom winced and grimaced with pain.  At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.

After an hour had passed, Broom tried to help his executioners, turning onto his side, sliding the rubber tubing that served as a tourniquet up his left arm, and alternatively squeezing his fingers together and apart. Even when executioners found what they believed to be a suitable vein, it quickly collapsed as they tried to inject the saline fluid. Broom was once again brought to tears. After more than two hours of executioners sticking Broom's arms and legs with the needle, the prison director decided that the execution team should rest.  The governor of Ohio issued a reprieve stopping the execution....

It is almost certain that the Bromell case now will make its way to the U.S. Supreme Court and that it will offer that court the chance to revisit the unfortunate precedent it set more than 60 years ago [allowing Louisiana to try again after a failed electrocution in the Francis case].

One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. Neither simple human decency nor the 8th Amendment can tolerate a government carrying out a death penalty sentence in a shoddy manner.  If we are going to have a death penalty, we cannot allow death, as the dissenting justice in the Francis case put it, to be carried out on the installment plan.

Prior related post:

March 18, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Thursday, March 17, 2016

Hello, it's sentencing, I was wondering if after singing I'd get fewer years....

66389510My students as well as regular readers know that I like to say that any and all matters in our crazy dyanmic world has a sentencing story lurking somehwere.  Thanks to a recent local court case, I now have a great reference if anyone ever questions how singing goddess Adele is linked to sentencing. This press piece is headlined "Convicted Felon Sings Adele-Inspired Apology at Sentencing Hearing," and here are the details:

A 21-year-old convicted felon sang an Adele-inspired apology to the judge overseeing his case at his sentencing hearing. On March 10, Brian Earl Taylor appeared at Washtenaw County Trial Court in Ann Arbor, Michigan, to be sentenced for unlawful imprisonment and carrying a concealed weapon, court records indicate. When he addressed the court, he sang his soulful apology to the tune of Adele's smash hit "Hello," complete with lyrics he'd written himself.

"I'm gonna start with a song," Taylor, a Belleville, Michigan, resident, said when he addressed the court. Taylor then began his one-minute song with a greeting to the judge. "Hello, your honor," Taylor sang.

As the song went on, he apologized to the victim, his mother and Judge Darlene O'Brien. "I want to say I’m sorry for the things I’ve done, and I try to be stronger in this life I’ve chosen," Taylor sang. "But I want you to know, that door I closed, your honor.

"I’m sorry, sorry, sorry," Taylor continued.

Prior to the hearing, one of Taylor's lawyers asked O'Brien to give Taylor permission to sing the song, the judge told ABC News. O'Brien looked at the lyrics and found them to be remorseful, she said. So, she allowed Taylor to proceed.

O'Brien said she found the song's melody to be familiar. "I love Adele's music," she said. One of the lawyers representing Taylor said he expressed the night before the hearing that he'd like to sing, but only if the judge was okay with it.

"That was all his idea," said Washtenaw County Assistant Public Defender Stephen Adams. "It was the way he could most comfortably tell her how he felt." The judge told Taylor that he obviously has talent and that she hopes he finds an appropriate way to use it, Adams told ABC News.

Police arrested Taylor after he was found struggling with a man in an apartment building in Ypsilanti, Michigan, while holding a gun to the man's abdomen on Nov. 9, according to a press release. Police said they believe that Taylor planned to rob the man. Taylor was sentenced to two years in a state prison for illegally carrying a concealed weapon and 18 months to 15 years for the unlawful imprisonment charge, court records show. Five other charges against him in the case were dismissed. Taylor pleaded guilty as part of a plea deal, Adams told ABC News.

"I’ve been here 23 years, and I’ve never seen a defendant sing at their sentencing hearing," said Ypsilanti Police Department Lt. Deric Gress, who oversees the detective department that handled Taylor's case.

March 17, 2016 in Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, March 16, 2016

Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt

This official summary from the Ohio Supreme Court office of public information provides a detailed summary of a notable capital punishment ruling today, and it starts this way:

An execution had not begun when an IV line could not be established to deliver lethal drugs into an inmate’s body even though a needle was inserted multiple times, and neither the U.S. nor Ohio constitution bars the state from carrying out the execution, the Ohio Supreme Court ruled today.

The Supreme Court ruled 4-3 that a second attempt to execute Romell Broom by lethal injection would not violate the cruel and unusual punishment or the double jeopardy clauses of the federal and state constitutions. Justice Judith Ann Lanzinger stated in the majority opinion that by law the death penalty begins with the application of lethal drugs, and since the execution team stopped after it could not keep an IV catheter functioning, Broom’s punishment had not started.

In separate opinions, dissenting justices countered that Broom is entitled to a hearing to prove a second attempt would also fail under the state’s procedures, and that the first attempt constituted cruel punishment.

The full opinion in Ohio v. Broom, 2016-Ohio-1028 (Ohio S. Ct. March 16, 2016), is available at this link.  I may comment more about this novel Eighth Amendment case in coming days.  But even without having a chance to review the opinions, I can predict with relative certainty that there will be an appeal to the US Supreme Court that may well interest some of the Justices.  Given that likelihood, as well as the difficulties Ohio has had with obtaining execution drugs, I think we can and should still expect Romell Broom to remain alive for many, many more future election days in bellwether Ohio.

March 16, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 15, 2016

Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014

USA-JUSTICE-CLEMENCYRegular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been.  Here are just a few of my prior related posts on this front:

Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:

In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.

Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.

More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.

Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....

A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.

But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...

The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....

Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.

So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.

A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."

This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....

Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.

Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.

Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.

March 15, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, March 14, 2016

"The Tyranny of Small Things" observed during local sentencing proceedings

I have long told my student that you can learn a lot by just watching, and this new paper on SSRN authored by Yxta Maya Murray reinforces this point in an interesting sentencing setting. The paper is just titled "The Tyranny of Small Things," and here is the abstract:

This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings.  I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement.  My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people.  In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.

March 14, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Sunday, March 13, 2016

"Feds want convicted journalist to serve 5 years, his lawyers ask for no prison time"

The title of this post is the headline of this interesting ArsTechnica article previewing an interesting federal sentencing scheduled for later this month in federal court in California.  Here are the particulars with all links from the original article to the parties' sentencing submissions and related materials:

Federal prosecutors have asked a judge to impose a sentence of five years against Matthew Keys, who was found guilty last year on three counts of criminal hacking under the Computer Fraud and Abuse Act.  That federal law, which was passed in 1984, was what the late activist Aaron Swartz was prosecuted under.  Last year, President Barack Obama called for Congress to expand prison sentences for those found guilty under this law.

Keys worked previously as an online producer for KTXL Fox 40, a Sacramento, California-based television station. Prosecutors argued that in December 2010, shortly after his dismissal, he handed over login credentials to a Tribune Media content management system (CMS), which allowed members of Anonymous to make unauthorized changes to a Los Angeles Times story. (At the time, both companies were both owned by Tribune Media.)  Those changes amounted to a short-lived prank: they lasted only 40 minutes, and there is little evidence that the prank was widely noticed. Criminal charges were not filed until March 2013.

Even after he was found guilty, Keys continued to deny the government’s narrative.  In a brief interview with Ars after his trial concluded, he described the prosecution’s theory as "total bullshit."

"A sentence of five years imprisonment reflects Keys’s culpability and places his case appropriately among those of other white-collar criminals who do not accept responsibility for their crimes," Matthew Segal, an Assistant United States Attorney, wrote in the Thursday sentencing memorandum.

In the 12-page filing, Segal explained that, although Keys initially "succeeded in deflecting suspicion away from himself," the FBI changed course after it reviewed chat logs found on the computer belonging to Wesley "Laurelai" Bailey, a former Anonymous member.  Those chat logs between Bailey and Ryan Ackroyd (aka "Kayla"), included a line where Kayla wrote: "Iol he's not so innocent and we have logs of him too, he was the one who gave us passwords for LA times, fox40 and some others, he had superuser on alot of media."  Segal explains further that Keys’ attack was "an online version of urging a mob to smash the presses for publishing an unpopular story," adding that Keys employed "means that challenge core values of American democracy."

Keys’ defense lawyers filed their own sentencing memorandum on Wednesday, asking the court to impose no prison time at all or go with a "non-custodial sentence."  The 69-page filing goes to great lengths to illustrate Keys lengthy history in journalism, going way back to his elementary school days when he edited the school bulletin.  "In recent years, Matthew’s sacrifices have paid off in the form of impactful journalism that has received national attention," wrote Jay Leiderman, his attorney, who has also worked on many other Anonymous-related cases.  "His stories have encouraged discourse, influenced policy and won the attention and accolades from his peers in the industry, public interest groups and even law enforcement officials."

Leiderman also notes that if the government’s recommendations stand, "[Keys] faces a far more severe sentence than any member of Lulzsec served.  60 months, which the Government seeks, would be more than any person engaged in hacking crimes during this period — by about double!"

I am a bit sorry I am not teaching my sentencing class this semester because the issues raised in this case and the parties' filing provide a great primer on guideline calculation disputes and the application of post-Booker sentencing jurisprudence based in the factors set forth in 3553(a). (I am teaching a 1L legal writing class in which students have to develop variance arguments for a white-collar offender, and I may urge my students to look at the parties' submissions for inspiration.)

March 13, 2016 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"

The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:

What if Walter White had been captured by the federal authorities?  Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him.  But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution.  Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.

This Essay explores the answer to the question of why we would spare Walter White from the death penalty.  Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.

Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands.  In fact, we were relieved that death came to him on his own terms.  And, if he had been captured, we would not have sent him to the death chamber.  Knowing Walt — understanding his “mitigation” — bent us towards mercy.

To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant.  After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II.  It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate.  Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.

Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end.  It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real.  Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all.  If we would spare Walter White, surely we would spare many others facing capital punishment.  But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys.  We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.

March 13, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, March 11, 2016

Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery

The local article, headlined "Juvenile lifers will get new sentences, but what law applies?," effectively reviews the many headaches that the SCOTUS rulings in Miller and Montgomery have created for folks in Pennsylvania. Here are excerpts:

In 1990, on Robert Holbrook's 16th birthday, he joined a group of men on a robbery that turned into a killing.  He received the only sentence Pennsylvania law allowed for murder: life without parole. In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18.  This January, the court ruled that the ban must be applied retroactively, to people like Holbrook. Since then, Pennsylvania's high courts have vacated dozens of life sentences.

It is now clear that Holbrook — along with about 480 other juvenile lifers across the state, 300 of them from Philadelphia — will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?

"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee.  "We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.

The most straightforward resolution might be new legislation, but it's not so simple.  After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17.  But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that.  "The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."

Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed.  Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder. "Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do.  It can only apply a constitutional sentence."

But Pennsylvania courts have already gone a different route. About two dozen juvenile lifers — all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly.  Pennsylvania's Supreme Court, in the case of Qu'eed Batts — who at age 14 committed a gang-related murder — said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life. So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.

But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence....

Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply. "I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.

She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years.  "In some of these cases, you're going to see time served become the new minimum.  Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."...

Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions.  One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.

But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."

Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible. "They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."...

Levick said, one outcome is all but certain: There will be even more legal appeals.

March 11, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements"

The title of this post is the title of this paper recently made available via SSRN and authored by Michael Patrick Wilt. Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

March 11, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, March 09, 2016

"Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California's Criminal Justice System"

The title of this post is the title of this new report recently published by The Opportunity Institute.  Here is the report's executive summary:

Criminal (In)justice examines 692 individuals who were prosecuted and convicted in California state or federal courts, only to have their convictions dismissed because the government prosecuted the wrong person, because the evidence was lacking, or because the police, defense, prosecutors, or court erred to such a degree that the conviction could not be sustained.  The 692 individuals subjected to these failed prosecutions spent a total of 2,346 years in custody, and their prosecutions, appeals, incarceration, and lawsuits cost California taxpayers an estimated $282 million when adjusted for inflation.  Eighty-five of these cases arose from a large group exoneration — the Rampart police corruption scandal — and are discussed separately in a later section of this report.

The remaining 607 convictions, all of which were reversed between 1989 and 2012, illuminate a dark corner in California’s criminal justice system.  These 607 individuals spent a total of 2,186 years in custody.  They burdened the system with 483 jury trials, 26 mistrials, 16 hung juries, 168 plea bargains, and over 700 appeals and habeas petitions. Many of the individuals subjected to these flawed prosecutions filed lawsuits and received settlements as a result of the error, adding to the taxpayer cost.  Altogether, we estimate that these 607 faulty convictions cost taxpayers $221 million for prosecution, incarceration and settlement, adjusted for inflation. This estimate is only a window onto the landscape of possible costs, as it does not include the often unknowable costs suffered by those subjected to these prosecutions.

The sections below provide a review of these 607 cases and offer some recommendations for change.

The first section, Characteristics of Injustice, paints a collective picture of the cases in our sample. Compared to California’s average, the individuals subjected to these errors were disproportionately prosecuted for violent crimes, especially homicide. This may be because prosecutions for violent crime are more likely to generate error than prosecutions for other crimes, though that question was beyond the scope of our research. Whatever the reason, failed prosecutions for violent crime account for a greater percentage of the wasted $221 million than failed prosecutions for other crimes. Indeed, flawed homicide convictions alone account for 52% of the $221 million, in part because these homicide cases took an average of 11 years to resolve and generated more lawsuits and civil settlements.

The second section, Causes of Injustice, catalogs the multitude of errors, dividing them into eight categories: eyewitness identification errors, prosecutorial misconduct, ineffective defense counsel, judicial mistake during trial, Fourth Amendment search and seizure violations, inadequate police practices before trial, unreliable or untruthful official testimony (officer or informant), and failure of prosecutorial discretion.

Prosecutorial misconduct and eyewitness identification were the most common errors in the flawed homicide prosecutions. When broken down by type of error, prosecutorial misconduct accounted for more of the cost in our sample than any other type of error.  By contrast, the most common errors in our sample were Fourth Amendment search and seizure errors, and judicial mistake.  These errors were resolved relatively quickly, however, and resulted in relatively little cost.

The third section, Costs of Injustice, walks through the cost analysis.  It documents the many hurdles raised by the California Victims Compensation and Government Claims Board.  This section also identifies many of the additional costs not captured by our methodology, including costs arising from wrongful misdemeanor convictions, flawed juvenile convictions, and cases that resolved prior to conviction, among others.  These unaccounted costs highlight the fact that this report documents only a portion of the vast unknown waste in California’s criminal justice system — but it is at least a beginning.

Criminal (In)justice ends with a section on Next Steps and Recommendations.  The problems presented in this report are undoubtedly complex, and each of them individually could be subject to its own investigation.  This report does not attempt to comprehensively define the universe of best practices that will solve all of the issues raised.  Instead, it identifies promising avenues for reform and highlights practices and jurisdictions that are leading the way. In particular, in 2006 the California Commission on the Fair Administration of Justice issued a report containing detailed recommendations regarding eyewitness identification, false confessions, informant testimony, problems with scientific evidence, and accountability for prosecutors and defense attorneys.  The recommendations represent the unanimous views of a diverse group of prosecutors, defense attorneys, judges, law enforcement, and other stakeholders.  To date, however, many of the substantive reforms have not been adopted, compromising public safety and leaving our criminal justice system at risk of endlessly repeating the errors catalogued here. (The report can be found at www.ccfaj.org.)

March 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Tuesday, March 08, 2016

Judge John Gleeson invents and issues a "federal certificate of rehabilitation"

Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

March 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8)

Monday, March 07, 2016

Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions

A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."  

Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors.  But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:

The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors.  It does not forbid a reassessment of what has happened in the last five years.  Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence.  He thought only that the law did not give him the authority to impose the lower sentence....

I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence.  For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago.  Times change.  The law has changed.  Our culture is changing its views about how long we should put people behind bars.  There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.

March 7, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Lots of Montgomery GVRs in latest SCOTUS order list

I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center.  But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).

Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016).  In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13).  On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.  The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.

I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.

March 7, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, March 06, 2016

"Assessing and Ameliorating Arbitrariness in Capital Charging: A Doctrinally and Empirically Anchored Inquiry"

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

Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago.  According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty.  The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty.  This has led to the growing disjunction between the Court’s rhetoric and the reality of capital punishment. Justice Breyer underscored the Court’s responsibility in holding death penalty systems accountable and called for full briefing on the basic question of the social realities of the administration of capital punishment.

Meaningful death penalty reform, if possible, requires a more prominent role for social science in death penalty decision-making.  In this Article, I develop a doctrinally anchored statistical model that carefully disentangles and evaluates questions of arbitrariness, bias, and disproportionality in capital charging.  I begin by discussing the Court’s inconsistent efforts to rationalize and regulate capital punishment systems.  I then adopt a framework of statistical inference in an effort to provide greater definitional and analytical clarity. Finally, I describe a set of analytical tools uniquely suited for diagnosing capital charging errors that closely aligns with the Court’s conceptualization of unacceptable arbitrariness. I illustrate the usefulness of the model on data involving actual death penalty-eligible defendants from Georgia.

My analysis reveals that death penalty charging practices are highly inconsistent, irrational, and disproportionate, both within and across jurisdictions in Georgia.  The Article concludes by explaining how the empirical model might be used to improve accuracy and consistency in capital charging systems through empirically informed front-end charging screening.

March 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Saturday, March 05, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Friday, March 04, 2016

Post-Hurst hydra take big bite into some capital cases in Alabama

Download (1)Regularly readers are perhaps now tired of hearing me use the term "post-Hurst hydra" (and what I still think is a cool image) to describe the 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.  But that hydra keep rearing its head, and yesterday it took a big bite in Alabama as reported in this local article

A Jefferson County judge Thursday morning ruled that Alabama's capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.  In making her ruling after a hearing, Jefferson County Circuit Judge Tracie Todd barred the death penalty in the cases of four men charged in three murders.

"The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd said in reading her written ruling from the bench.  "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The result of Todd's order is that the judge won't allow the death penalty to be imposed in the cases before her.  But attorneys present at the hearing said it would be up to other judges whether to follow her example.  But Todd said her ruling likely will be appealed by prosecutors.  If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

"Judge Todd's ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court," Alabama Attorney General Luther Strange said Thursday afternoon.   "Alabama's capital sentencing statutes are constitutional.  Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional. We are currently reviewing the Judge's written order, and expect to file an appeal.  We fully expect today's ruling by Judge Todd to be reversed."

As this press account of the trial court ruling highlights, the decision by Judge Todd covers a lot more ground than just the application of the SCOTUS Hurst opinion in Alabama.  The opinion is available at this link, and all persons concerned about the death penalty ought to read it in full.  Toward the end of the extended opinion, the judge discusses Hurst and seems to rest her decision in large part on its Sixth Amendment holding. But she also discusses a number of other issues surrounding Alabama's capital sentencing scheme, and it is actually hard for me to assess whether the interplay of concerns discussed in this opinion may make it more or less likely to be reversed on appeal.

March 4, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"

The title of this post is the title of this new article now available via SSRN authored by Michael Tonry.  Here is the abstract:

Concern for equality and human dignity is largely absent from American sentencing.  Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer.  The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies.  The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.

The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems.  Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.

March 4, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, March 03, 2016

Florida legislature completes Hurst "fix" for its capital punishment procedures

As reported in this AP piece, the "Florida Legislature on Thursday sent to Gov. Rick Scott a bill that would require that at least 10 out of 12 jurors recommend execution in order for it be carried out." Here is more:

Florida previously only required that a majority of jurors recommend a death sentence. Scott has not said if he will sign the measure but he has supported Florida's use of the death penalty since he became governor.

The U.S. Supreme Court ruled in January that the current law is unconstitutional because it allows judges to reach a different decision than juries, which have only an advisory role in recommending death.  The state Supreme Court halted two pending executions following the ruling, and court cases across the state had been put on hold.

Legislators were initially divided over whether they should require a unanimous jury recommendation in death penalty cases. Florida is one of only a handful of states that does not require a unanimous decision by the jury . State senators agreed to switch to 10 jurors as part of a compromise with the House, but some legislators have warned that the decision could result in the law being challenged once again.

The bill sent to Scott does not apply to the 389 inmates now sitting on Florida's death row.  The state Supreme Court has been asked to decide whether the U.S. Supreme Court ruling should apply to those already sentenced to death.

It is an absolute certainty, not just a possibility, that Florida's new capital sentencing procedure will be "challenged once again," which is why I put the term "fix" in quotes in the title of this post.  Indeed, given the need now to sort through the impact of Hurst (1) on the "389 inmates now sitting on Florida's death row" and (2) on Florida's (many) pending capital cases based on crimes committed before this new law was passed, and (3) on any future capital cases that apply this new law, I kind of feel bad for all the Floridian capital case prosecutors and defense attorneys who will likely not have much of an opportunity to work on their Florida tans for quite some time.

March 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, March 02, 2016

Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?

The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students.  The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):

Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.

Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases.  WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.

The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student.  He already is serving three life prison terms for a sexual assault in northern Virginia.

According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...

Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search.  Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.

After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas.  He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample.  That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities.  The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.

The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.

Both the Harrington and the Graham families are supportive of the deal, WTVR reports.  Both families requested to give victim impact statements at the Wednesday afternoon hearing.

When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.

Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.

Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome.  But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (29)

"One Size Does Not Fit All: The Need for a Complete Abolition of Mandatory Minimum Sentences for Juveniles in Response to Roper, Graham, and Miller"

The title of this post is the title of this article authored by Lindsey Krause now available via SSRN. Here is the abstract:

Juvenile sentencing practices in the United States have seen an enormous amount of reform in the past decade. Three United States Supreme Court cases created the foundation for such reform: Miller v. Alabama, Graham v. Florida, and Roper v. Simmons.  Each of these cases recognizes that youth in the criminal justice system are different from adults and should be treated as such.

Mandatory minimum sentences prevent courts from following the promises of Roper, Graham, and Miller.  The mitigating factor of youth cannot be considered if a judge is given no discretion where a mandatory minimum sentence exists.  This article analyzes recent jurisprudence in Iowa, completely abolishing mandatory minimum sentences for youth under the age of 18 and advocates for the remainder of the nation to follow in the state's footsteps.

March 2, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Updating Delaware's struggles with the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases.  And in this post about a month ago, I reported on the notable decision in Delaware to put all pending capital murder trials and executions on hold until the state Supreme Court resolved the constitutionality of the state's death penalty law in the wake of Hurst.  

Now, thanks to this local article headlined "Public defenders: Death penalty unconstitutional," we can all read about the arguments from Delaware capital defense attorneys that the post-Hurst hydra must devour the state's existing capital sentencing scheme. Here are the basics from this press account:

Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional -- and therefore needs to be fixed by lawmakers.  The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.

"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said.  "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."...

Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware.  They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.

"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said.  "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."

The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional.  "There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote.  "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous.  That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."

The full brief referenced above can be accessed at this link.

Prior related post:

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 01, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Monday, February 29, 2016

SCOTUS appears troubled by state judge's failure to recuse in capital case after past history as prosecutor in case

This AP report, headlined "Justices hear judicial-bias claim in death-row case," reports on today's SCOTUS oral argument in the Williams case involving Eighth Amendment and Due Process claims arising from a jurist's failure to recuse himself in a Pennsylvania capital case.  Here are the basics:

The Supreme Court on Monday appeared likely to rule that a Philadelphia district attorney-turned-state high court judge should not have taken part in the case of a prison inmate whose death-penalty prosecution he had personally approved nearly 30 years earlier.

The justices indicated that inmate Terrance "Terry" Williams should get a new hearing in Pennsylvania's Supreme Court because then-Chief Justice Ronald Castille voted to reinstate Williams' death sentence in 2014. A lower court judge had thrown out the sentence because prosecutors working for Castille had hidden evidence that might have helped the defense in Williams' 1986 murder trial.

Justice Sonia Sotomayor was among several justices who focused on Castille's actions in 1986, when he was the Philadelphia district attorney. "The judge here actually signed his name to the review of the facts and the decision to seek the death penalty," Sotomayor said.

When Philadelphia Deputy District Attorney Ronald Eisenberg told the justices that the passage of time had lessened concerns about bias, Justice Anthony Kennedy was almost incredulous. "So the fact that he spent 30 years in solitary confinement actually helps the state?" Kennedy said.

The conditions of Williams' confinement could be an issue in the outcome of his case.  Pennsylvania has not executed anyone since 1999, and Gov. Tom Wolf has declared a moratorium on executions.  But even if the chance of Williams' being put to death is small, he continues to be held in isolation along with other death row inmates in Pennsylvania.  The court also confronted whether Castille's participation in the case made a difference on a court that ruled unanimously against Williams.

The full SCOUS oral transcript in Williams v. Pennsylvania is now  available at this link.  As always, I would be grateful for help from readers to identify any especially noteworthy (i.e., blog-worthy) interchanges from the argument.

February 29, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)