Friday, June 03, 2016
"Conservatives should celebrate Obama’s commutations"
The title of this post is the headline of this new Dallas Morning News commatary. The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:
The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation. This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration. And word out of the White House is that there will be more to come during President Obama’s final months in office.
Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime. But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.
It’s becoming clear that something has gone very wrong with the justice system in the United States. Today, the U.S. has the highest incarceration rate in the world. Too many crimes have been federalized, as opposed to being handled more locally by state and local courts. Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements. And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....
Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums. While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict. It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.
Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm. Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison. Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences. But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.
Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption. Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”
Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption. Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive. Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities. And libertarians — well, libertarians already get it.
There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration. But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.
June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions
Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings. And here we have another example: this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana. Here are excerpts:
The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).
We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.
Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.
In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....
Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....
Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.
As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump. As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts. If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.
Prior related posts about Gingrich's criminal justice reform advocacy:
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- Newt Gingrich urging Gov Jerry Brown to sign law to allow resentencings for juve LWOP in California
- Newt Gingrich and Van Jones say "Prison system is failing America"
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
- Newt Gingrich and Van Jones lament treatment of mentally ill in US criminal justice system
June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)
Thursday, June 02, 2016
"Rich Defendants’ Request to Judges: Lock Me Up in a Gilded Cage"
The title of this post is the headline of this lengthy front-page New York Times article. Here are excerpts:
Last October, Ng Lap Seng, a Chinese billionaire indicted on charges that he bribed the former president of the United Nations General Assembly, was granted bond of $50 million, secured by $20 million cash and a Midtown apartment where he would be confined and subjected to GPS monitoring and roundtheclock guards at his own expense.
Many thousands of people arrested in New York languish in the city’s jails because they are unable to make even modest bail. So advocates for prisoners and lawyers for indigent defendants say the idea that some defendants are able to stay out of jail because they have the means to finance a novel confinement plan is blatantly unfair.
“It just reinforces for me the point that our entire system of pretrial detention is predominantly based on wealth,” said Inimai M. Chettiar, a lawyer at the Brennan Center for Justice who runs an initiative to end mass incarceration. Joshua Norkin, a lawyer at the Legal Aid Society of New York, said the elaborate bail package that was being proposed for Mr. Zarrab and that was granted to Mr. Ng should remind judges in the state court system that they have the tools to release low-income people “on alternative and more creative forms of bail, and they’re failing to do it.”
The cases of wealthy defendants’ receiving special bail conditions are not limited to international defendants. In 2009, Marc S. Dreier, a Manhattan lawyer who pleaded guilty to running an elaborate scheme that defrauded hedge funds and other investors of $700 million, was granted a $10 million bond pending trial and remained in his East Side apartment, secured by electronic monitoring and armed security guards, which his family paid for.
Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense
Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:
Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”).
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.” He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon. The government identified what it described as the “handful” that are “potentially relevant.” The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption. She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”
The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.” Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.” David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
Prior related post:
- Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
Wednesday, June 01, 2016
Examining the high costs of expungement process in some jurisdictions
The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes. The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:
Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay. But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.
While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach. In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.
In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report. Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies. Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.
Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible. Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive. “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”
In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce. Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund. In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat. At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.
Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.
Tuesday, May 31, 2016
Is "geography" really an "arbitrary feature" of a capital prosecutions?
The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):
Lamondre Tucker shot and killed his pregnant girlfriend in 2008. At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.
Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography. See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14). One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.
I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row. But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case." Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.
Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices. Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder. And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments. (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")
In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.
SCOTUS order list inclludes a couple notable criminal appeal summary reversals
The Supreme Court returned from the long weekend with this long order list, which includes a few long per curiam decision in an habeas case from the Ninth Circuit (Johnson v. Lee) and a capital case from Arizona (Lynch v. Arizona). In addition, the Court denied cert in Tucker v. Louisiana, a case in which the constitutionality of the death penalty was directly challened and Justice Breyer (joined by Justice Ginsburg) dissented in an opinion that calls again for taking up this question.
Notably, the Ninth Circuit (and the criminal defendant) is the loser in Lee, whereas the capital defendant prevails in Lynch. There was not dissent from the ruling in Lee, but Justice Thomas (joined by Jusice Alito) dissented from Lynch.
Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
As noted in this prior post, last week federal prosecutors finally decided that they will seek the death penalty for racist mass murderer Dylann Roof. That decision, as reported in this recent local article, now creates some novel issues in light of South Carolina's parallel capital prosecution plan. The article, headlined "Dylann Roof prosecution entering ‘uncharted waters’ of legal history," includes these passages:
Authorities will have two chances to see that Dylann Roof meets the same fate as his victims.
But never in modern times have both state and federal prosecutors sought someone’s execution at the same time. How they will manage two death penalty cases could break legal ground and offer some lessons.
“We are in completely uncharted waters,” said Chris Adams of Charleston, an experienced capital defender. “The federal government’s decision (to seek the death penalty) creates many more questions than it does answers.”...
Scheduled for Jan. 17, the state’s trial is on a faster track. Wilson also sent a letter to [U.S. District Judge Richard] Gergel, asking him to set the federal trial later. The judge could finally set a trial date at a June 7 hearing.... The possibilities are daunting. “It just creates logistical chaos,” Adams said. Officials must sort out subpoenas being filed in two different courts, he said. Prosecutors in each case also must give the defense all exculpatory evidence, or information used to fend off a guilty verdict or to mitigate a sentence. If some evidence is missed in the first trial only to be discovered when it’s turned over in the second trial, that might be grounds for an appeal in the first...
State and federal authorities rejected Roof’s offer to plead guilty and serve life in prison. “Now what we’re going to have is ... possibly two very public, very painful trials and unquestionably a decade of appeals,” [DPIC executve director Robert] Dunham said. “The families will have to deal with Dylann Roof getting all the attention.” But Dan Simmons Jr., whose father was slain in the attack, said prosecutors have made him well aware of that. The Virginia resident has attended most hearings in the two courthouses that sit across the street from each other. “It’s been more than overwhelming,” he said. “But it’s not an overnight thing. ... It’s going to open up some wounds. But we will endure.”...
The state ran out of its supply of the fatal drug [used in executions] in 2013. Citing ethics, all major manufacturers have cut off the states, whose stashes soon expired or were seized as illegal imports. And the federal government has been reviewing its injection methods since 2010, effectively halting executions. There is no indication that either government is in a better position to obtain the supplies now, Dunham said. State prisons spokeswoman Stephanie Givens said, “Officials continue to research solutions and alternatives but have been unsuccessful in acquiring lethal injection drugs.” So even if a jury condemns Roof to death, experts said, the 22-year-old could live a long life in prison — unless he voluntarily opts for South Carolina’s alternative execution method: the electric chair.
I cannot at this point resist highlighting that I flagged the possibility of a double capital prosecution in this post about the case back in June 2015.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Monday, May 30, 2016
New Vera Institute report reviews trends in state sentencing and corrections
The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text:
Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.
Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to
create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;
reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and
support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.
Saturday, May 28, 2016
"To Save Our Justice System, End Racial Bias in Jury Selection"
The title of this post is the headline of this New York Times op-ed authored by one of my favorite former bosses, US Court of Appeals for the Second Circuit Judge Jon O. Newman. Like all writing by Judge Newman, this piece is astute and sensible, and it provides a sound and simple recommendation forimproving the operation of our modern criminal justice system. Here are excerpts:
The Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection. The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.
Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10. In federal death penalty cases, each side has 20. State numbers vary.
In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race. Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager. The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.” The plan worked, and an all-white jury sentenced Mr. Foster to death.
This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009....
The Advisory Committee on Rules of Criminal Procedure, which is part of the Judicial Conference, the federal court system’s principal policy-making body, should propose sharply reducing the number of jury strikes allowed in federal trials. Several Supreme Court justices have suggested as much. Justice Thurgood Marshall endorsed such a reform in his concurring opinion in the 1986 case Batson v. Kentucky: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” In 2005, Justice Stephen G. Breyer also urged reconsideration of the peremptory challenge system.
Total abolition of peremptory challenges would most likely face vigorous opposition from prosecutors and some defense attorneys. And it’s unlikely to be achieved, either for federal or state criminal trials. But reducing the number will do significant good. In 1879, the Supreme Court declared that to single out African-Americans for removal from jury service “is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” All-white juries will continue to be a blight on the American system of criminal justice until federal and state rule makers significantly reduce the number of peremptory challenges.
Prior recent related posts:
- SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"
- Dynamic commentary on SCOTUS work in Foster and related Monday news
Two notable new article examing capital prosecutions of intellectually disabled defendants
Michael Perlin, whose interesting scholarship on mental health criminal always includes an extra-fun Bob Dylan reference in the title, has these two notable new articles on capital prosecutions now available via SSRN:
At the risk of being caught up in an idiot wind, I may wait until after the long weekend to read these pieces in order to avoid getting tangled up in blue.
Friday, May 27, 2016
Split Iowa Supreme Court decides any and every "sentence of life without the possibility of parole for a juvenile offender violates article I, section 17 of the Iowa Constitution"
As noted in prior posts here and here, yesterday brought notable post-Miller juve sentencing decisions from state supreme courts in California and Florida. But today the Iowa Supreme Court has one-upped its colleagues via its post-Miller ruling in Iowa v. Sweet, No. 14–0455 (Iowa May 27, 2016) (available here). The lengthy majority opinon in Sweet wraps up this way:
In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences the juvenile to life in prison with parole, it does not mean the parole board will release the juvenile from prison.”); see also State v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an offender sentenced to life with parole may nonetheless “spend the rest of his life in prison if the parole board does not determine that he is suitable for parole release”). Steinberg has poignantly made this very point:
It’s not only adolescents’ immature judgment that demands that we treat them differently when they break the law. If the plasticity of the adolescent brain makes juveniles more amenable to rehabilitation, this argues against mandatory life sentences that don’t allow courts to consider whether an impulsive or impressionable teenager might grow into a law-abiding adult who can control his impulses and stand up to peer pressure. Of course, a teenager who kills another person deliberately should be punished — no one is arguing otherwise. But should he be incarcerated for the rest of his life, with no chance to prove that he has matured?
Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation augur forcefully against speculative, up-front determinations of opportunities for parole and leads inexorably to the categorical elimination of life-without-the-possibility-of-parole sentences for juvenile offenders.
For the above reasons, we adopt a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution. As a result, the sentence of the district court in this case is vacated and the matter remanded to the district court for resentencing.
Nothing in this opinion, of course, suggests that a juvenile offender is entitled to parole. The State is not required to make such a guarantee, and those who over time show irredeemable corruption will no doubt spend their lives in prison. The determination of irredeemable corruption, however, must be made when the information is available to make that determination and not at a time when the juvenile character is a work in progress.
A lengthy dissent authored by Justice Mansfield gets started this way:
Recognizing that our legislature and our trial courts have the primary role in determining criminal sentences, I would affirm the life-without-parole (LWOP) sentence for this seventeen year old who murdered his grandparents who had raised him.
Today, the court breaks new ground in finding that the Iowa Constitution categorically forbids such sentences. As I will explain below, I believe the justification offered by the majority for its ruling is insufficient. More is needed before we strike down a legislatively authorized sentence — especially one the general assembly reauthorized by large majorities in both houses just last year.
"The Story of Federal Probation"
The title of the post is the title of this notable new paper authored by Brent Newton now available via SSRN. Here is the abstract:
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission (“the Commission”), pursuant to the Sentencing Reform Act of 1984 (“SRA”), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission’s policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades. That rate has fallen from around half of all federal sentences in the decades before the guidelines went into effect in late 1987, to slightly less than a quarter of federal sentences shortly after the guidelines were first implemented nationwide in the early 1990s, and to one in ten federal sentences today.
This Article assesses those critics’ claims about federal probation sentences and, in the process, tells the story of federal probation — beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress’s directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much — or even more — responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
In particular, the current low rate of federal probationary sentences is in large part explained by: (1) significant changes in the types of federal offenses prosecuted during the past three decades (with two-thirds of federal cases today involving substantial drug-trafficking offenses, firearms offenses, or immigration offenses, which typically do not involve realistic candidates for probation); (2) a significant increase in the average federal defendant’s criminal history during the past three decades; (3) the enactment of several federal penal statutes either requiring a mandatory minimum term of imprisonment or otherwise prohibiting probation as a sentence; (4) the implementation of the Bail Reform Act of 1984, which today results in the pre-sentencing detention of three-quarters of federal offenders (and creates a strong incentive for detained defendants not to ask for probation); and (5) a significant increase in the percentage of non-citizen offenders in the federal criminal justice system (who are not eligible for probation as a practical matter).
May 27, 2016 in Booker in district courts, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)
Thursday, May 26, 2016
California Supreme Court says juve killers sentenced before Miller get benefits of new post-Miller state parole statute
Today seems to be a specical day for big states to have their Supreme Court's issue big rulings concerning the sentencing of juve murderers after Miller. I noted in this prior post a ruling from the Florida Supreme Court in this arena, and now I have seen that the California Supreme Court also did some work in this space via California v. Franklin, No. S217699 (Cal. May 26, 2016) (available here). Here is the start of the majority opinion in Franklin:
Defendant Tyris Lamar Franklin was 16 years old at the time he shot and killed another teenager. A jury convicted Franklin of first degree murder and found true a personal firearm-discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, so Franklin‘s total sentence was life in state prison with the possibility of parole after 50 years.
After Franklin was sentenced, the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence," including Caballero‘s term of 110 years to life. (Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-life sentence under these authorities.
We granted review to answer two questions: Does Penal Code section 3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he receive a parole hearing during his 25th year of incarceration? If not, then does the state‘s sentencing scheme, which required the trial court to sentence Franklin to 50 years to life in prison for his crimes, violate Miller‘s prohibition against mandatory LWOP sentences for juveniles?
We answer the first question in the affirmative: Penal Code sections 3051 and 4801 — recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin‘s case.
Split Florida Supreme Court finds technical eligibility for parole insufficient to comply with Miller Eighth Amendment requirements
The Florida Supreme Court today handed down a notable new opinion applying Miller in a case involving a juvenile offender who got a life sentence for a murder back in 1990. Here is how the opinion in Atwell v. Florida, No. SC14-193 (Fla. May 26, 2016) (available here), gets started:
Angelo Atwell was sixteen years old when, in August 1990, he committed armed robbery and first-degree murder. Under the statute then in effect, Atwell was sentenced for the first-degree murder to a mandatory term of life imprisonment, with the possibility of parole after twenty-five years, and was sentenced to life imprisonment without the possibility of parole for the armed robbery.
As mandated by the existing statutory scheme, Florida’s parole process requires “primary weight” to be given to the “seriousness of the offender’s present offense and the offender’s past criminal record.” See § 947.002, Fla. Stat. (2015). Under this statutory scheme, twenty-five years after Atwell was sentenced, the Commission on Offender Review conducted a parole hearing and set Atwell’s presumptive parole release date, which is the earliest date he may be released from prison as determined by objective parole guidelines, for the year 2130—one hundred and forty years after the crime and far exceeding Atwell’s life expectancy. Thus, while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.
The issue we consider is whether Atwell’s sentence for first-degree murder is constitutional, in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), which held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.
"Creating Meaningful Opportunities for Release: Graham, Miller and California's Youth Offender Parole Hearings"
The title of this post is the title of this notable new paper authored by Beth Caldwell now available via SSRN. Here is the abstract:
This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison. It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.
The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014. In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population. Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison. At the same time, it does not go far enough. After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings.
May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Making my way to DC for U.S. Chamber/NACDL Symposium: "The Enforcement Maze: Over-Criminalizing American Enterprise"
Highlighting the many ironies of modern travel, this morning I got to the airport extra early for a flight to DCA because of all the talk about TSA under-staffing and long security lines. But after breezing through securing in a matter of minutes, I am now stuck in the CMH terminal delayed hours awaiting a working plane to ferry me to our nation's capital to participate in a symposium on overcriminalization. I am bummed about the delay because I was looking forward to hearing the morning panels at this inside-the-Beltway event to which I am heading: The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers (NACDL) Law & Policy Symposium on "The Enforcement Maze: Over-Criminalizing American Enterprise."
Undaunted, I remain upbeat because I am cautiously optimistic I will still make it to DC in time to hear fellow lawprof Lucian Dervan present a "TED Talk-inspired" presentation on "The Symbiotic Relationship Between Overcriminalization and Plea Bargaining." I am also looking forward to an afternoon of highlights at this event that include a luncheon keynote by David Ogden, former Deputy Attorney General of the United States, as well as closing remarks by Senator Orrin Hatch.
For those revved up by these topics, here is the description of my afternoon panel:
The Public Policy Consequences and the Road to Recovery: This panel will address the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems.
I expect to talk briefly about the importance of mens rea considerations at the sentencing of persons convicted of business-related crimes (and I may do a future post or two on this topic). But, in light of the panel's description, I would welcome reader comments on what I should make sure gets covered my someone on my panel.
Wednesday, May 25, 2016
Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:
The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” The judge noted that there were nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities or disadvantages on convicted felons.
Such consequences — the denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”
The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”
The judge’s ruling does not create a binding legal precedent for other courts, but is likely to further contribute to the national debate about the criminal justice system. Gabriel J. Chin, a professor at the University of California Davis School of Law, called the opinion “groundbreaking.”
“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written extensively on the subject and whose work the judge cited in the opinion. “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.
The sentencing opinion was issued in the case of Chevelle Nesbeth, who was arrested last year at Kennedy International Airport after a search of her luggage turned up 600 grams of cocaine, court records show. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.
But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.
Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:
Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.
I am writing this opinion because from my research and ex:erience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.' And I believe that judges should consider such consequences in rendering a lawful sentence.
There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...
Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.
Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide
Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:
It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years. After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.
Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try. But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....
There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime. First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016). That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004). The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....
Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).
The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections. Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there. Due process demands more.
May 25, 2016 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)
Tuesday, May 24, 2016
Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Almost a year after Dylann Roof committed one of the worst mass murder hate crimes in modern US history, federal prosecutors have offically decided to make his federal prosecution a capital one. Here are excerpts from this CNN report about this (too-long-in-development) decision:
Federal prosecutors will seek the death penalty for Dylann Roof, who is accused of killing nine people at a historic African-American church in Charleston, South Carolina, in July 2015.
Roof, who is white, is charged with 33 federal offenses, including hate crime charges for allegedly targeting his victims on the basis of their race and religion. A judge entered a not guilty plea on his behalf in July 2015. "The nature of the alleged crime and the resulting harm compelled this decision," Attorney General Loretta Lynch said.
Roof, 22, is accused of shooting participants of a Bible study class at Emanuel African Methodist Episcopal Church, known as Mother Emanuel, in downtown Charleston on June 17, 2015. Among the victims was the church's pastor, the Rev. Clementa Pinckney, who also was a state senator.
South Carolina has charged Roof with murder. Charleston County Solicitor Scarlett Wilson said last year that she will seek the death penalty in the state's case, which is scheduled to go to trial in January.
There is no date yet for his federal trial. Attempts to reach Roof's attorneys for comment were not immediately successful.
Roof, a high school dropout not known for violence, was captured in North Carolina the day after the shootings. He confessed in interviews with the Charleston police and FBI, two law enforcement officials told CNN. He also told investigators he wanted to start a race war, one of those officials said.
Three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium. They were Timothy McVeigh, Juan Raul Garza and Louis Jones. Boston Marathon bomber Dzhokhar Tsarnaev is one of the most recent people to be sentenced to death by a federal judge. There are about 60 people on federal death row.
I fully share the Attorney General's view that the "nature of the alleged crime and the resulting harm compelled this decision," and that is why I have been critical in prior posts about it taking so long to make this decision. A well-functioning criminal justice system surely ought to be able to prosecute and sentence a mass murderer in the span of a year in a case like this one in which there is no doubt about guilt. But, remarkably, it seems it now takes a year just to decide whether the death penalty should be even sought. Sigh.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
Reviewing the state and future of lethal injection as execution method
Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:
Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September. Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.
Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994. This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers. They can’t import drugs from foreign manufacturers — which, in any case, will not supply them. In short, their options are severely restricted, which will almost certainly lead to more botched executions.
Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic. These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products. They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax. In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)
Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....
The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty. But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent. In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions. If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution? The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice. But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.
Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.
Dynamic commentary on SCOTUS work in Foster and related Monday news
A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman. Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:
At The Atlantic here by Garrett Epps, "The Passive-Aggressive U.S. Supreme Court: Even in the face of clear precedent, some justices just don’t like it when a convicted petitioner is right on the law."
At Bloomberg View here by Noah Feldman, "How Clarence Thomas Broke My Heart"
At Crime & Consequences here by Kent Scheidegger, "Reversal in an Ugly Batson Case"
At Crime & Consequences here by Bill Otis, "Reversal in an Ugly Batson Case"
At Slate here by Dahlia Lithwick, "Peremptory Prejudice: Racism still infects jury challenges, even if most aren’t as blatant as these awful Georgia prosecutors."
The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.
UPDATE: Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:
At Gamso, For the Defense here by Jeff Gamso, "Cognitive Dissonance - Or Maybe He Just Lied"
At Mimesis Law here by Andrew Fleischman, "Foster v. Chatman: When Prosecutors Strike"
At Simple Justice here by Scott Greenfield, "Race Neutral Reasons When Nothing Is Race Neutral"
Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons
As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws. Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy. Here are the details:
Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.
The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.
Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....
The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.
McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.
“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...
The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...
McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”
McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.
The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
- Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
Monday, May 23, 2016
"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"
The title of this post is the title of this notable new paper now available via SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.
The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.
SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"
The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages:
As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....
The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....
The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.
Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:
Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial. Time and again, the state courts have rejected that claim. The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989). A state habeas court rejected it in 2013. App. 175–176, 192–196. And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.
Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor. It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry. I respectfully dissent.
SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death
Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases. But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana. The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:
The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery. The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.
Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:
In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed. In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole. It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future. In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.
Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:
Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same). There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).
The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.) Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.” Roper, 543 U.S., at 571. As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).
ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:
[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.
Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.
In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.
We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.
When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.
We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
- The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
- White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”
Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)
May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Sunday, May 22, 2016
"Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department."
The sentence that serves as the title of this post comes from this remarkable 28-page "Memorandum Opinion and Order" entered late last week by US District Judge Andrew Hanen as part of the litigation brought by Texas and others states to challenge President Obama's DAPA and DACA immigration directives. Though I have not followed this "civil" litigation closely, this order certainly heightens my concerns that in federal criminal cases some DOJ lawyers embrace an "ends-justify-the-means" approach to litigation on behalf of the federal government. Then again, the (sure-to-be-appealed) requirements that Judge Hanen has for DOJ appearing at the end of this remarkable opinion perhaps should make me more hopeful concerning the future work of DOJ lawyers in all settings:
Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice....
The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021). The decision of the lawyers who apparently determined that these three-year renewals under the 2014 DHS Directive were not covered by the Plaintiff States’ pleadings was clearly unreasonable. The conduct of the lawyers who then covered up this decision was even worse. Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again. Specifically, this report should include what steps the Attorney General is taking to ensure that the lawyers of the Justice Department will not, despite what court documents may portend or what a court may order, unilaterally decide what is “material” and “relevant” in a lawsuit and then misrepresent that decision to a Court. Stated differently, the Attorney General is also hereby ordered to report what steps she is taking to ensure that, if Justice Department lawyers make such an internal decision without approval from the applicable court, the Justice Department trial lawyers tell the truth—the entire truth—about those decisions to the court and opposing counsel.
Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.” Office of Professional Responsibility, DEP’T OF JUSTICE, https://www.justice.gov/opr (last visited May 17, 2016). Its lawyers in this case did not meet the most basic expectations. [FN 18] The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.
[FN 18] Other courts have noticed these problems as well. Just in the last six months, both the Fifth Circuit and the Sixth Circuit have questioned the conduct of those employed by the Department of Justice. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015); In re United States, No. 15-3793, 2016 WL 1105077 (6th Cir. Mar. 22, 2016). The Fifth Circuit went further and suggested that not only was there misleading conduct, but the conduct was followed by an inadequate investigation and a cover-up. These are just two of an ever-growing number of opinions that demonstrate the lack of ethical awareness and/or compliance by some at the Department of Justice.
Saturday, May 21, 2016
"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"
The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:
This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes. Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes. The difference is significant. The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime. The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.
Thursday, May 19, 2016
Can anyone forcefully assert that a major sentence enhancement based on acquitted conduct (or even uncharged conduct) is "fundamentally fair"?
The question in the title of this post is prompted by a few notable sentences at the very end of the (otherwise not-especially-notable) majority opinion from the Supreme Court today in Betterman v. Montana, No. 14-1457 (S. Ct. May 19, 2016) (available here). Specifically, after holding that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing, the Court in Betterman has this to say about the possible role of the "more pliable standard" that relates to due process rights: "After conviction, a defendant’s due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair."
As regular readers know, in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the Sixth Amendment's jury trial right must create a constitutional limit of some sort on judicially-imposed major sentence enhancements that are based on so-called acquitted conduct. (My views here have most recently be articulated in full via this (unsuccessful) SCOTUS amicus brief in support of cert from a few years ago). But, as Betterman helps to highlight, even if and when a defendant cannot prevail on a Sixth Amendment claim at sentencing, he can always fall back on a Fifth/Fourteenth Amendment Due Process claim. And, of particular linguistic importance, if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or "interest") "in a sentencing proceeding that is fundamentally fair," perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.
I know this post may be just wishful thinking that the last phrase about due process quoted above might be given some real constitutional bite by SCOTUS or lower courts in days and months ahead. But hey, what fun is life without at least a little wishful thinking.
Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)
The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:
1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.
2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.
Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:
The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution? That is the sole question this case presents. We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his Sixth Amendment challenge.
Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:
[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).
Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?
This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles. The piece's full headline highlights its themes: "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics." Here is how the piece started (with links from the original):
Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.
But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.
Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.
Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.
“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”
A few of many prior related posts:
- Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
- "Montgomery's Messy Trifecta"
- What should we expect after Montgomery from states that had resisted Miller retroactivity?
- Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"Are Prosecutors the Key to Justice Reform?: Given their autonomy — only if they want to be."
The title of this post is the headline of this lengthy Atlantic article which effectively highlights how little we know about the work of prosecutors and how critical they are to the operation and impact of criminal justice systems. I recommend the are piece in full, and here are snippets:
A consensus is building around the need to seriously rethink the role of the prosecutor in the administration of justice. Power dynamics are unbalanced, sentencing guidelines are outdated, and old-fashioned human biases persist. And prosecutors — singularly independent agents in a justice system roiling in turmoil — have been facing growing criticism and public distrust for some time, and that disapproval is about to hit a tipping point. It’s time to curtail the power long held by these officers of the court as they promote justice, ensure fairness, and enhance public safety....
John Jay College of Criminal Justice recently announced its new Institute for Innovation in Prosecution, headed by former prosecutor Meg Reiss. A joint project from the Manhattan District Attorney’s Office and the college, the New York City-based institute will “develop programs designed to support innovation in the role of prosecutors in the American justice system.” Reiss, a jurist with two decades of experience, has great faith in what her former colleagues can accomplish. She also owns up to the negative perceptions typically tied to the role. “There’s a lot of mystery about what actually goes on in a prosecutor’s office, so people have never been able to really evaluate it and see exactly what it is they’re doing,” she said....
Reiss said part of the solution is giving prosecutors better tools with which to do their jobs — with “a lot more discretion and creativity.” She said some crimes should fall into categories like “alternatives to prosecution” and “diversion programs.” “Of course, you address violent crime appropriately, and no one’s saying that you shouldn’t,” Reiss said. “But I think everything needs to be carefully evaluated and understood. There isn’t a broad stroke that you use for every type of crime or every type of person.” She cites the intelligence-driven prosecution model out of the Manhattan district attorney’s office as a good place to start: “DA Cyrus Vance is holding a symposium, one of many they’ve done already, on a crime-strategies unit that he has set up in his office, teaching other officers around the country how to do the same.”
It might take that kind of colleague-to-colleague approach to change the prosecutorial culture in the United States. “The bottom line is people came to be prosecutors because they really wanted to ensure fairness and increase public safety,” Reiss said. “They have a real moment at this time to step up and make a big change, to really lead in this effort, to be really innovative and forthright in their intentions, to reduce mass incarceration, to address racial disparity in the system, to look for alternatives to oppressive sanctions. We missed so many things and now is the moment.”
California voters in November to have "mend it or end it" death penalty initiative options
As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:
Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.
No one has been executed in California in a decade because of ongoing legal challenges. Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978. Far more condemned inmates have died of natural causes or suicide.
Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families. The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.
Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer. By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case.... Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....
Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke. Each side needs nearly 366,000 valid signatures to qualify for the ballot. "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."
A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.
Wednesday, May 18, 2016
"Jurisdiction and Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied"
The title of this post is the title of this notable new and timely scholarship authored by Leah Litman and Luke Beasley. Here are excerpts from the start of the piece which highlights its themes and timeliness:
This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.
Take, for example, the recent litigation about whether prisoners with “Johnson” claims may be resentenced. Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. ACCA imposed a mandatory fifteen-year term of imprisonment on prisoners; but without ACCA, the statutory maximum term of imprisonment for these prisoners is ten years. Johnson therefore means these prisoners could lawfully be sentenced to no more than ten years in prison. Prisoners whose ACCA sentences depended on the residual clause are now seeking to have their 15-year sentences reduced to the lawful 10 years. But three courts of appeal held that AEDPA bars prisoners with Johnson claims from obtaining relief if they have already filed one petition for post-conviction review, because the prisoners do not satisfy AEDPA’s conditions for filing a successive petition for postconviction review....
Part I describes AEDPA’s restrictions on post-conviction petitions that are preventing prisoners with meritorious claims from obtaining relief, and how the United States is attempting to bypass those restrictions by waiving the argument that AEDPA’s restrictions are not satisfied. Part II argues that AEDPA’s restrictions on filing successive petitions for post-conviction review are not jurisdictional, and that courts may therefore accept the government’s waiver and allow prisoners to obtain relief on their claims even if prisoners do not satisfy AEDPA’s preconditions for filing successive petitions for post-conviction review.
"Sentencing phase: did heredity play part in serial killer’s crimes?"
It is often said that the sins of the father should not befall the son, but an on-going capital case in Ohio suggests that at least one defendant is hoping the sins of his father and grandfather and great-grandfather might help keep him off death row. The title of this post is the headline of this local story which provides these details:
Was heredity to blame for the violent crimes of convicted serial killer, Michael Madison? A Cuyahoga County jury was presented with that possibility in the courtroom of Judge Nancy McDonnell on Tuesday.
Dr. Mark Cunningham, a clinical and forensic psychologist from the state of Washington, testified heredity was an aspect of sexual offending. "There is patterning within these family systems,” he said, “They found that having a brother or father who had been convicted of a sexual offense increased the odds of being convicted of a sexual offense four to five fold.”
Cunningham prepared a diagram showing the history of Madison’s family dating back to his great-grandfather. The chart illustrated how the serial killer’s relatives preyed on each other physically and sexually, including their own children. Social Service records and interviews with Madison’s family revealed he was abused for years by his mother and her boyfriends.
"The way that he was treated is the template of how he then goes about interacting with others throughout his life,” said Cunningham, “It's a core principle that the FBI's behavioral science unit identified as they looked at the histories of sexual homicide offenders and observed that the quality of attachments to parents and other members of the family during childhood is central to how the child will relate to and value other members of society.”
The 37-year-old was convicted of raping and murdering Angela Deskins, Shetisha Sheeley and Shirellda Terry, all of East Cleveland. Their bodies were found near his East Cleveland apartment in July of 2013.
Tuesday, May 17, 2016
Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections
A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment. Here are links to the opinions and the summary that appears at the start:
People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):
This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.
The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment. In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.
People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):
The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.
Monday, May 16, 2016
SCOTUS back to work with no new cert grants, punting, and a per curiam AEDPA summary reversal
The Supreme Court this morning issued orders and a number of opinions after returning from a few weeks off, and the lead story seems to be primarily what the Justices did not do: the Court did not grant certiorari on any new cases, did not conclusively resolve (but essentially punted issues back to lower courts) a couple high-profile argued cases, and did not split 4-4 (or even 5-3) on any merits opinions.
The one thing the Court did do that might interest criminal justice fans involves a per curiam ruling in a federal habeas case coming from the Ninth Circuit. The ruling in Kernan v. Hinojosa, No. 15-833 (S. Ct. May 16, 2016) (available here), gets started this way:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to “exhaus[t] the remedies available in the courts of the State.” 28 U. S. C. §2254(b)(1)(A). If the state courts adjudicate the prisoner’s federal claim “on the merits,” §2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” §2254(d)(1), or “was based on an unreasonable determination of the facts,” §2254(d)(2). The Ninth Circuit in this case decided that the Supreme Court of California’s summary denial of a habeas petition was not “on the merits,” and therefore AEDPA’s deferential-review provisions did not apply. We summarily reverse.
Notably, Justice Sotomayor issued a dissenting opinion, which Justice Ginsburg joined, to explain why she thought the Ninth Circuit was in the right when refusing to apply AEDPA’s deferential-review provisions in this case.
Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:
Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....
The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....
Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”
Prior related post with my scholarly take on Montgomery:
Sunday, May 15, 2016
Is it fair for me to worry that drug war distractions contribute to "a revolving door for violent offenders" in DC?
The question in the title of this post is prompted by this lengthy new Washington Post article headlined "How an accused rapist kept getting second chances from the D.C. justice system," which is the "first installment in a series that will examine issues related to repeat violent offenders in the District of Columbia." I am pleased to see the Post giving attention to how repeat violent offenders manage to avoid serious punishments, but I hope that the series will get around to exploring my enduring concern that repeat violent offenders can too often and too readily exploit cracks within any justice system overworked and overloaded from treating drug problems as primarily criminal justice concerns. These enduring concerns aside, here are excerpts from the Post's story that serve as an introduction to the troubling tale that follows:
The 40-year-old woman, described in court papers as 5 feet tall and 100 pounds, suffered fractures in her eye socket and cheekbone. The alleged perpetrator, 21-year-old Antwon Durrell Pitt, had an extensive criminal history, including eight arrests in four years and a robbery conviction. Three times, he was sentenced under laws designed to promote leniency and second chances for inexperienced adult offenders. In two of those cases, he was sentenced under the District’s Youth Rehabilitation Act, a 1980s-era law aimed at “deserving” offenders under the age of 22.
Pitt’s case shows that such laws, combined with lax enforcement by key federal agencies, can give many chances to violent offenders despite repeated criminal behavior and the failure to abide by terms of release, according to a Washington Post review of court records, transcripts and probation reports.
The D.C. criminal justice system relies on a mix of federal agencies and D.C. judges to swiftly intervene and communicate vital information to protect the public from violent offenders. In the crucial weeks before the rape, a D.C. Superior Court magistrate judge and two federal agencies — the Court Services and Offender Supervision Agency (CSOSA) and the U.S. Parole Commission — failed to work together to take Pitt off the streets.
Pitt’s behavior raised many red flags, indicating escalating risk. Just out of prison last summer after serving a robbery sentence, Pitt did not report for some of his court-ordered drug testing and anger management sessions. He did not keep in contact with his supervision officer. And in a final act of defiance, Pitt cut off the GPS monitoring bracelet affixed to his ankle and let the battery run dead. He was completely off the grid.
CSOSA, the federal agency charged with watching D.C. offenders released from prison, did not request a warrant for Pitt’s arrest for 15 days after losing contact with him. The Parole Commission waited a week after getting that request before forwarding it to law enforcement. And the magistrate judge denied a prosecutor’s request to keep Pitt behind bars, despite a troubling report from the Pretrial Services Agency. “No conditions or combination of conditions can reasonably assure the defendant’s appearance or safety to the community,” said the report that was given to magistrate William Nooter.
The District’s Youth Rehabilitation Act was passed in 1985 to give youthful adult offenders a chance to have their records wiped clean from public view if they successfully complete their sentences, even those who commit violent crimes, with the exception of murder and a second crime of violence while armed....
At a time when the Obama administration and Congress are working to ease “mandatory minimum” sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African Americans, D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets. The District, for example, has seen a near doubling in the percentage of homicide suspects with prior gun-related arrests. “Sometimes, we just scratch our heads,” D.C. police Chief Cathy L. Lanier said. “We feel like there’s a revolving door for violent offenders. It’s very frustrating for us because we see the victim, and we see the impact on the victim.”
Thursday, May 12, 2016
Can and should Missouri, after completing its last execution for a while, send any extra execution drugs to other needy states?
The question in the title of this post is prompted by this AP article about the first and likely last execution in Missouri this year. The piece is headlined "Missouri man put to death for killing deputy, 2 others; could be last execution for some time," and here are the basics:
A man who killed two people in a drug dispute and a sheriff’s deputy in a subsequent shootout was put to death Wednesday in what could be Missouri’s last execution for some time.
Earl Forrest, 66, went to the home of Harriett Smith in December 2002 and demanded that she fulfill her promise to buy a lawn mower and mobile home for him in exchange for introducing her to a source for methamphetamine. During an argument, Forrest shot Smith and Michael Wells, who was visiting Smith’s home. Forrest later fatally shot Dent County Sheriff’s Deputy Joann Barnes after she arrived at Forrest’s home.
Missouri has executed 19 men since November 2013. But the remaining 25 death row inmates either have appeals still pending or other reasons they will not face imminent execution. Forrest’s fate was sealed hours before his punishment when the U.S. Supreme Court refused to halt the execution and Missouri Gov. Jay Nixon, a Democrat, turned down a clemency request.
According to court documents, Forrest had been drinking when he went to Smith’s home in the southern Missouri town of Salem. Wells was visiting Smith at the time. An argument ensued, and Forrest shot Wells in the face. He shot Smith six times and took a lockbox full of meth valued at $25,000. When police converged on Forrest’s home, he fatally shot Barnes and injured Dent County Sheriff Bob Wofford, according to court documents. Forrest was also injured in the exchange of gunfire, along with his girlfriend, Angela Gamblin.
Missouri has been one of the most prolific states for executions in recent years, second only to Texas. The state has executed 19 prisoners since November 2013, including six last year. Forrest’s execution was the first in 2016.
Missouri’s death row population is dwindling. Robert Dunham, executive director of the Death Penalty Information Center in Washington, said juries today are less likely to opt for capital punishment, in part because of greater awareness of how mental illness sometimes factors in violent crime. Just 49 people were sentenced to death nationally last year, the fewest since the U.S. Supreme Court reinstated the death penalty as a possible punishment in 1976. No one was sentenced to death in Missouri in 2014 or 2015, Dunham said. “As these executions take place, fewer and fewer people are being sentenced to death, so the death penalty is withering on the other end,” Dunham said.
None of the 25 other men remaining on Missouri’s death row face imminent execution. Sixteen have yet to exhaust court appeals and aren’t likely to do so soon. Execution is on hold for nine others. Two were declared mentally unfit for execution. Two were granted stays because of medical conditions that could cause painful deaths from injections. Two had sentences set aside by the courts due to trial attorney errors. One inmate was granted a stay while his innocence claim is reviewed. One case was sent back to a lower court to consider an appeal.
And in one unusual case, inmate William Boliek was granted a stay by Democratic Gov. Mel Carnahan in 1997. The case wasn’t resolved before Carnahan died in a 2000 plane crash, and a court determined that only Carnahan could overturn the stay. Nixon’s office has said Boliek will not be executed.
As regular readers may recall and as Ohio capital lawyers know well, while Missouri has had the lethal injection drugs needed to carry out nearly 20 executions in the last few years, the Buckeye state has more than two dozen execution scheduled that have been persistently delayed because the state cannot seem to get its hands on any lethal injection drugs. I do not know where Mizzou gets its lethal injection drugs or whether it has some additional drugs on hand now without any executions scheduled for the foreseeable future. But I do know that a functioning legal system with large percentages of voters and elected officials supporting a functioning death penalty ought to be able to figure out some way for nearby states to help each other out in this arena.
I bring this up because I have long believed in the aphorism "where there's a will, there's a way." And thus, I have also come to believe that the main reason Ohio has not been able to figure out how to secure needed execution drugs (while many other states seem to have these drugs) is because there just is not the political will to fix the state's enduring capital punishment administrative problems.
Wednesday, May 11, 2016
"Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. Here are some excerpts from the start of the report:
In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S. Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent. One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court.
While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.
We find that most people who are unable to meet bail fall within the poorest third of society. Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts....
Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity. Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails. Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.
Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery
A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:
This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment. This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18. Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.
Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass. First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460. Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.
The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013. That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller. In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.
How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?
The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:
In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.
Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....
In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.
Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....
The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.
Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.
The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.
A few prior related post:
- Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences
- An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed
- Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures
Tuesday, May 10, 2016
Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release
A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:
Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.
"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"
The title of this post is the title of this notable new paper authored by Ken Strutin now available via SSRN. Here is the abstract:
This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.
Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood. Part II addresses the reality of petition or perish created by Bounds and Casey. Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated. Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.
Monday, May 09, 2016
Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures
As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:
Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.
“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...
In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....
After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”
Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”
The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.
Sunday, May 08, 2016
Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been
Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years. The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:
In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.
Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.
From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.
The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...
On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.
“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...
An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.
Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.
An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....
Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War. With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.
This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year. Here is how it concludes:
If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.
In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)
For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.
With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.
“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.
"Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops"
The title of this post is the title of this notable new paper authored by Stephanos Bibas now available via SSRN. here is the abstract:
American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around.
This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.
Saturday, May 07, 2016
An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed
Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases. Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.
As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole. But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution. And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:
In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case. Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":
1. Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.
2. Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so. For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.
3. Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....
The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements. Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not. Attributing such an intended result makes no sense given the purpose of the law.
Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve. Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.
The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves. Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary. Absent strong evidence the legislature intended this result, it should not be attributed to them.
The new act should apply to any cases remanded for resentencing.