Thursday, February 25, 2016

Former judges and Justice in Washington urge state's current Justices to strike down state's death penalty

This AP article from Washington reports on a notable brief filed in a capital case in the state Supreme Court.  The article is headlined "Dozens of judges ask Washington high court to ban death penalty," and here are excerpts:

Washington state's relationship with the death penalty over the past few decades has been so tenuous that even mass killers, serial killers and a cop killer have escaped it.  Only five people have been executed in the past 35 years. Gov. Jay Inslee, a one-time supporter of capital punishment, has said no executions will take place while he's in office.  And the state prosecutors association has called for a referendum on whether to bother keeping it on the books.

Now, the state's high court, which came within one vote of striking down the death penalty a decade ago, is re-examining it.  Dozens of former Washington judges have taken the unusual step of urging the court to find it unconstitutional this time — including former Justice Faith Ireland, who sided with the narrow majority in upholding capital punishment back in 2006.

Arguments are scheduled for Thursday in the case of Allen Eugene Gregory, who was convicted of raping, robbing and killing Geneine Harshfield, a 43-year-old cocktail waitress who lived near his grandmother, in 1996.

His lawyers are challenging his conviction and sentence, including procedural issues and statements made by a prosecutor during the trial.  But they also insist that the death penalty is arbitrarily applied and that it is not applied proportionally, as the state Constitution requires.  Certain counties — especially Pierce, where Gregory was convicted — have been aggressive about seeking execution, while others have said a death-penalty case would quickly bankrupt them, making the location of the crime a key factor in whether someone might be sentenced to death....

One of the newer justices, Charles Wiggins, has expressed concerns over indications blacks are statistically more likely to be sentenced to death in Washington than whites, while another, Sheryl Gordon McCloud, represented defendants who had been sentenced to death — and criticized the way the death penalty is applied — during her previous career as an appellate lawyer....

In its brief, the Pierce County Prosecutor's Office urged the court to uphold the punishment, which is allowed by the federal government and 32 states.  It argued the court has repeatedly upheld capital punishment, that those rulings should stand, and that Gregory shouldn't be allowed to make his constitutional arguments because he did not properly preserve those issues for appeal.  "Since death penalty abolitionists are unable to convince large numbers of Washingtonians to abolish the death penalty, defendant turns to this court in hopes that he can convince five of the court's members that abolishing the death penalty is reflective of current public opinion," deputy prosecutor Kathleen Proctor wrote.  "Essentially, defendant asks this court to become a legislative entity and to override the desire of the people of this state to have the death penalty as an available sanction for certain homicides."

In joining 55 other ex-judges who signed a brief filed by the American Civil Liberties Union of Washington urging an end to capital punishment, Ireland, who served a single term on the Supreme Court, was particularly concerned about geographical disparities in death sentences — an issue that the majority held was not squarely before the court in 2006.  "We can't call the death penalty anything but arbitrary when it depends on whether you kill someone in a rich county or one that can't afford such a trial," she wrote in an email to The Associated Press.  "That could be fixed in my opinion by having death penalty prosecutions and defenses funded at the state level."

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

Tuesday, February 23, 2016

Federal district judge in Nebraska calls 10-year mandatory prison sentence for drug offender "absolutely ridiculous"

This local article from the Lincoln Journal Star, headlined "Judge: 10-year sentence is 'absolutely ridiculous'," reports on a notable comments from a federal district judge as he sentenced a seemingly low-level drug offender to a decade in federal prison. Here are the basics from the start and end of the lengthy article:

On a recent Friday in a federal courtroom in Lincoln, a federal judge spoke critically about the 10-year sentence he was on the verge of handing down to the Lincoln man, a nonviolent, recovering meth user. U.S. District Judge John Gerrard's hands were tied.

"The only reason I'm imposing the sentence that I am imposing today is because I have to," he told Leo Guthmiller III on Feb. 12. "That's what Congress mandates." He called Guthmiller, the man at the defense table, Exhibit A for why Congress should pass the Smart on Crime Act. Last June, in a similar case, he called Robyn Hamilton the poster child for it.

In both of the cases, Gerrard, a former Nebraska Supreme Court justice nominated to the federal bench by President Barack Obama in 2011, said the sentence didn't fit the crime. There should be imprisonment, he said, but 10 years in cases like these is ridiculous, draconian even....

[O]n Feb. 12, federal public defender John Vanderslice said Guthmiller got arrested June 20, 2013, at a Lincoln Walmart with a small amount of methamphetamine on him, got accepted into the Lancaster County Drug Court on the state charge and has been clean and sober ever since.

Guthmiller thought drugs were in his past, then, in 2015, he was federally indicted for being part of a conspiracy to distribute methamphetamine in Lincoln back in 2013 for introducing people who were buying and selling it and sometimes getting a cut for it. He pleaded guilty.

"This war on drugs that we are waging in this country with mandatory minimum sentences as applied to a person like Mr. Guthmiller, it's tragic," Vanderslice said at the sentencing. He said it's turned Guthmiller's life upside down.

An emotional Guthmiller apologized for all his past transactions "and everything that's led me to this moment in my life."

"I have worked really hard to turn my life around," he said. "And I'm proud to say that even with all this present stuff facing me that I will continue to do so."

Then, Gerrard handed down his sentence, saying there "should be just punishment, respect for the law. But a 10-year sentence is absolutely ridiculous in a case like this. But there may be another day in court at some point in time." He allowed Guthmiller to report to prison in April.

February 23, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, February 22, 2016

"On first day without Scalia, Supreme Court faces a possible tie vote" ... in a criminal procedure, Fourth Amendment case

The title of this post is drawn in part from this USA Today article's headline reporting on oral argument today in the Supreme Court in a Fourth Amendment case, Utah v. Strieff.  I thought to flag this story not only because it suggests the now-short-staffed Supreme Court may be unable to resolve tough criminal procedural cases, but also because Strieff might provide an early clue in the coming weeks concerning how the Chief Justice and his colleagues may try to handle divided cases while short-staffed.  Here is how the press report starts:

Without Antonin Scalia's potential tie-breaking vote, the Supreme Court appeared split down the middle Monday in a case that could impact the way police stop and search suspects.

The court's liberal and conservative members took opposite sides in the case — a relatively frequent occurrence, but one that now could produce 4-4 deadlocks in the wake of Scalia's unexpected death Feb. 13. Such verdicts would uphold decisions reached by lower courts without setting any national precedent.

The case involves a Utah police officer's detention of a man leaving a house that was under observation for possible drug-dealing. Based on the discovery of an outstanding arrest warrant for a minor traffic infraction, the man was searched and found to have illegal drugs. The Utah Supreme Court ruled that the initial stop was illegal and the discovery of the arrest warrant insufficient to justify the search and arrest, prompting Utah to appeal.

Of course, there are many times when, even after the Justices appeared deeply divided at oral argument, they ultimately do not split 5-4 (or in this case 4-4) when it comes time to vote on a case's resolution.  And folks interested in reading for themselves how divide the Justice were this morning can find the argument transcript for Utah v. Strieff at this link.

February 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing

The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story.  The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:

This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others.  Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions).  In both instances, the government must make a motion for a lower sentence.

This publication discusses the history and current use of Fed. R. Crim. P. 35(b).  It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions.  The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures. 

Key Findings

A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:

  • Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions.  There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.

  • Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range.  This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.

  • Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.

  • Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures.  This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.  The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.

  • Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.

  • Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.

February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, February 19, 2016

Reviewing Justice Scalia's "Mixed Drug War Record"

This new piece by Jacob Sullum at Forbes provides a useful drug-war lens through which to examine one part of Justice Antonin Scalia's Supreme Court jurisprudential legacy.  Here is a brief excerpt:

Scalia was of two minds when confronted by the government’s efforts to suppress consumption of arbitrarily proscribed intoxicants.  The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her “Just Say No” campaign.  During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a “drug-free society.”  While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.

For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment’s ban on “unreasonable searches and seizures.”  Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers’ bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities.  But Scalia also resisted drug warriors’ assaults on the Fourth Amendment.

Prior related posts on Justice Scalia and his criminal justice legacy:

February 19, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, February 18, 2016

Compassionate release consensus and dissensus at US Sentencing Commission public hearing

As detailed in this press report, headlined "Prison-Release Program Debated in Hearing," there were both common and diverse perspectives at the US Sentencing Commission hearing yesterday concerning the federal system's approach to compassionate release:

The compassionate release system for federal prisons is "broken," a series of government witnesses, advocates and stakeholders told the U.S. Sentencing Commission at a public hearing Wednesday.  But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.

The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.

Wednesday's public hearing in a small conference room in the Thurgood Marshall Federal Judiciary Building in downtown Washington, D.C., was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.  

The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons."  Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.

The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.  

The 10 year requirement drew some criticism from the witnesses, especially Michael Horowitz, inspector general for the U.S. Department of Justice, who suggested the 10-year requirement might have unintended consequences.  Horowitz estimated the requirement that inmates serve at least 10 years of their sentence before being considered for compassionate release cuts out half of the inmates who could benefit from the program.  This includes elderly inmates sentenced to relatively short times in prison, who are arguably the safest prisoners to release into the community, Horowitz said.

The commission seemed to agree with Horowitz and his suggestion to simply eliminate the 10-year requirement and keep the guidelines requiring inmates serve at least 75 percent of their given sentences.  "Where's the science behind the 10 years?" Judge Charles Breyer, vice chair of the commission, asked.  "I don't see it, I'm unaware of it, but is there something that the Justice Department or the Bureau of Prisons have figured out that 10 years?  Because it looks to me that all they're saying is we want to make sure that somebody receives an adequate punishment."

The involvement of the BOP director was another point of contention at Wednesday's hearing, as witnesses offered competing views of who should be in the driver's seat of the compassionate release program.  Jonathan Wroblewski, principal deputy assistant attorney general for the Justice Department, told the six-member sentencing commission that the BOP is in charge of the compassionate release program, and suggested the commission and courts take on an advisory role....

Margaret Love, a non-voting member of the Practitioners Advisory Group, stood in stark contrast to Wroblewski's executive-centric policy proposal, arguing that Congress intended the U.S. Sentencing Commission to lead the program, with the courts taking a major role and the BOP being relegated to the "gate-keeping" role of applying the guidelines to specific cases....  She urged the commission to develop a clear policy to lead the BOP and suggested an addition to the proposed amendment that would require the BOP director to make a motion for release of an inmate under the compassionate release program if they meet all qualifications, instead of the voluntary system in place now.

This agenda from the USSC hearing yesterday now has links to all the witnesses' written testimony.

February 18, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, February 17, 2016

Is federal bail reform key to making a serious dent in mass incarceration?

The question in the title of this post is prompted by this notable This Week commentary by Ryan Cooper, headlined "President Bernie Sanders couldn't stop mass incarceration by himself. But this one reform would be a very good start."  Here are excerpts (with a few links from the original):

[Many have] badly understated the extent to which federal policy affects incarceration outside of federal prisons — particularly jails.  It's a great opportunity for Sanders to clarify his message [about reducing incarceration] and seize on bail reform — a vastly overlooked part of the mass incarceration problem.  While it probably wouldn't move the U.S. from the top spot by itself, bail reform could make an enormous difference....

First, federal crime policy exerts a strong gravitational pull on state behavior.  Federal sentencing guidelines heavily influenced the state versions; state-level lawyers, judges, and policymakers tend to look to the higher-status federal system for cues and ideas, and there is much back-and-forth staff movement.  Hence, if the federal criminal justice system were to make a sharp turn against harsh punishments, it's virtually certain that would percolate through some if not most of the state systems and thus reduce the prison population over time.  Federal leadership matters here.

This effect also holds for bail policy, which is the primary determinant of the size of the jail population. As I covered extensively last year, about 62 percent of the people in jail are legally innocent.  A major reason why is the Bail Reform Act of 1984, which made it dramatically easier to keep people locked up before federal trials; most of the states followed suit.  Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they've just been arrested and will make bail in the next few days.  Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.

This is a human rights atrocity for many reasons, but perhaps the biggest one is that the first 48 hours or so in jail is extremely traumatic for people with no experience in the prison system. It's why the suicide rate in jails is 2.5 times greater than in actual prisons — witness Sandra Bland, an ordinary middle-class person who apparently committed suicide very soon after being thrown in jail.

Now, it would be unconstitutional for Congress to simply force states to change the way they do bail.  But there are four less direct avenues to pursue: First, pursue reform for federal prisoners, to take advantage of the percolation effect mentioned above.  Second, put conditions on the many grants the feds dole out for the states' criminal justice systems, requiring bail reform as a condition of getting the money. Third, pass a law declaring current use of money bail a violation of the 14th Amendment's due process protection, which Congress has power to protect.  Fourth, there is a very strong case that current bail policy is a violation of the 8th Amendment, so the Department of Justice could pursue a lawsuit and attempt to get a Supreme Court ruling allowing the feds to step in.  The last two of these are a bit of a long shot, but taken together this would be a powerful package.

But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards.  Second, very sharply reduce the use of money bail. If used, it should never be beyond a person's ability to pay.  No person should ever rot in jail waiting for a trial because he can't scrounge up the cash to make bail — poverty should not be a crime.  Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial.  In most cases, it simply isn't needed — basic pretrial supervision works much better.

There is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014.  Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once.  It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry.  At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.

At any rate, even very aggressive bail reform wouldn't get us to the Chinese figure of 1.66 million prisoners quoted above, and it would require congressional action.  But bail reform would be a gigantic step in the right direction. When it comes to fighting mass incarceration, it's the easiest and most obvious first step.

February 17, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, February 16, 2016

Rounding up diverse perspectives on Justice Scalia's diverse criminal justice work and the impact of his loss

Though there is already far too much old and new media discussion of Justice Scalia's legacy and the debate over his replacement to be consumed, I am going to try to make an effort to note and link here SCOTUS/Scalia stories with a particular focus on criminal justice issues. Here are the headline from some of what I have seen around the web recently that seem worth a peek:

February 16, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, February 15, 2016

Might Virginia go back to the electric chair to try to complete an execution scheduled for next month?

The question in the title of this post is prompted by this recent Washington Post article headlined "Lacking lethal injection drugs, Va. might turn to the electric chair." Here is how the article begins:

Virginia lawmakers are mulling a bill that would allow state officials to use the electric chair to execute those on death row when lethal-injection drugs are not available — a measure that might be needed to put an inmate to death next month.

The legislation passed the Virginia House of Delegates last week, though it still must clear the Senate, which it has failed to do in the past.  But this year might be different because an inmate is scheduled for execution in March, and prison officials say they do not have the sedatives they need to do it.  “It’s our job to help carry out what they have decided in a court of law,” said Del. Jackson H. Miller (R-Manassas), who introduced the bill.

The proposal again thrusts Virginia to the center of a national debate on how the justice system should deal with those it has determined deserve to die. Historically, states turned away from the electric chair, believing lethal injection to be quicker, less painful and less likely to be declared cruel and unusual punishment, said Robert Dunham, executive director of the Death Penalty Information Center.  Now — with the needed drugs in short supply — they are being forced to look at alternatives, sometimes turning to practices that have fallen out of favor, Dunham said.

“The irony is they’re looking for alternatives to lethal injection because lethal injection may be found to be cruel and unusual, or because lethal injection drugs are becoming harder for states to lay their hands on,” Dunham said. “It’s pretty clear that states that adopt electrocution as the method of execution are going to face very serious constitutional challenges.”

Virginia is one of eight states that already allow electrocution as a method of execution, letting inmates choose between it and lethal injection. The next inmate slated to die, Ricky Gray, has not yet picked a method.  What will happen at his March 16 execution — or if it will go on as planned — remains unclear.

Gray, 38, was convicted in 2006 of brutally killing a Richmond musician, his wife, and their 9- and 4-year-old daughters. He picked the family because he spotted their door open and decided to rob them, court documents say.  The documents say Gray also confessed to killing his wife, Treva Terrell Gray, and three members of another Richmond family. In urging his colleagues to pass the bill, Miller gave a lengthy and graphic description of Gray’s crimes and asked legislators to help the victims’ families “get the justice that they deserve and that our justice system has determined they deserve.”

“This isn’t expanding the death penalty, but the case I just told you about is exactly why we have this punishment on our books,” he said.

Marna Squires, the mother of Gray’s wife, said she does not care what method is used.  “I’d love to be there and lay him down on the gurney and put the needle in him if they’d let me,” Squires said.

Executions by electrocution are far less common than those by lethal injection, though they are not unheard of. According to the Death Penalty Information Center, 158 people have been executed by electrocution since 1976, compared with 1,252 by lethal injection. Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia permit the practice in theory, according to data from the center, though each state has different rules. The last inmate to pick electrocution in Virginia was Robert Gleason Jr., who was given a life sentence for killing someone to cover up his involvement in a drug gang, then death for killing two fellow inmates behind bars. He was executed in 2013.

Courts in Georgia and Nebraska have ruled that electrocution violates their state constitutional protections against cruel and unusual punishment, according to the center.

February 15, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, February 14, 2016

In (sentencing) memorium: why I am already missing Justice Scalia

InmemoriamslateJustice Antonin Scalia was nominated to be a Justice just a few months after I graduated from high school, and I have never really known a Supreme Court without his voice and views being integral to the Court's work.  And Justice Scalia earned a unique and enduring place in my professional heart with his work for the Court in Blakely v. Washington.  In this 2004 Slate commentary stressing how consequential the ruling was for sentencing law and policy, I called Justice Scalia's opinion in Blakely "majestic and mysterious, historic and hysterical, stunning and stupefying," and "a great read [that] often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights."

I could (and likely will in some future law review pages) wax even more potetic about the Blakely opinion and about how his work in the Apprendi and Booker lines of cases are likely to long persist as the most critical and consequential constitutional rulings in the modern history of sentencing jurisprudence.  But in this post, I am eager to take a few moments to note and link some highlights in the remarkable corpus of significant sentencing opinions authored by Justice Scalia during his three decades on the high court:

Mistretta v. United States, 488 U.S. 361 (1989) (dissenting)

Stanford v. Kentucky, 492 U.S. 361 (1989) (for the Court)

Harmelin v. Michigan, 501 U.S. 957 (1991) (for the Court and concurring)

Callins v. Collins, 510 U.S. 1141 (1994) (concurring)

Almendarez-Torres v. United States, 523 U.S. 224 (1998) (dissenting)

Apprendi v. New Jersey, 530 U.S. 466 (2000) (concurring)

Ring v. Arizona, 536 U.S. 584 (2002) (concurring)

Blakely v. Washington, 542 U.S. 296 (2004) (for the Court)

Johnson v. United States, 135 S. Ct. 2551 (2015) (for the Court)

By keeping this list focused only on sentencing cases, I have left off many of Justice Scalia's hugely consequential opinions on lots of other criminal law matters (see, e.g., Crawford and Heller). And, I suspect that some readers think fondly (or perhaps not so fondly) of other Scalia sentencing opinions no listed above. But even this abridged list highlights how profoundly significant Justice Scalia was in shaping modern sentencing jurisprudence.

Prior related post:

February 14, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, February 13, 2016

Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?

Download (3)The question in the title of this post is prompted by this press report headlined "With death penalty decision uncertain, judge delays Dylann Roof’s federal trial."  Here are the details:

A federal judge on Thursday delayed Dylann Roof’s trial in the deadly attack on Emanuel AME Church because prosecutors still have not decided whether to seek execution. Roof could face the death penalty on nine of his 33 charges in federal court, but Assistant U.S. Attorney Jay Richardson said the decision by Washington-based Justice Department officials could take another two months.

Such delays in high-profile federal cases are typical.  After the Boston Marathon bombings in April 2013, it took then-Attorney General Eric Holder more than nine months to announce he would seek the death penalty against Dzhokhar Tsarnaev.  Nearly eight months have passed since Roof’s arrest.  Attorneys for the 21-year-old Eastover resident already have said he would plead guilty if the government opts against capital punishment.

U.S. District Judge Richard Gergel urged prosecutors during a hearing Thursday in downtown Charleston to inform him promptly of any development so a trial date can be set.  “There are obviously important and alternate paths to go here based on that decision,” the judge said.

Roof’s federal charges in the June 17 shooting of nine black parishioners at the Calhoun Street church include civil rights violations. Officials have called the shooting a hate crime.  Because of the delays in the federal case, Roof is likely to be tried first in state court in July.  State prosecutors already have said they would pursue the death penalty. Thursday’s hearing in federal court served as a chance for Roof’s defense team and prosecutors to update Gergel on the status of the case. Roof, who remains at Charleston County’s jail, was not there....

Evidence in the cases continues to flow at a steady clip.  Roof’s defense team, led by attorney David Bruck, last month got a hard drive full of data, and the FBI has since authored more reports, Richardson said.

While Richardson said the government would be ready for a trial soon, Bruck said his ability to defend his client depends on the death penalty decision.  A trial could be avoided, he said, if Roof pleads guilty and gets life in prison.

Roof already had waived his right to a speedy trial because his lawyers need time to review “vast amounts” of evidence to defend him in a death penalty trial, Bruck said. “He has offered to plead guilty,” said Bruck, who also represented Tsarnaev in the Boston trial. “Everybody knows that. That has been the position since the first day of this case. The only issue is the government’s decision to accept that plea.”

Federal prosecutors have said that they planned to send their case to U.S. Attorney General Loretta Lynch’s office in December. The Justice Department’s Review Committee on Capital Cases typically makes a recommendation to Lynch within 90 days.  Though two representatives of the department’s Civil Rights Division, which typically leads such prosecutions, attended Thursday’s hearing, Richardson answered the judge’s questions. The prosecutor said that many people must give input and express opinions before a decision is made. “We feel like we are much closer,” he said.

I am generally disinclined to urge a prosecutorial charging decision should be rushed.  But I am mystified why and ultimately troubled by the feds needing a year to decide whether to seek a capital charge in a case where there seems to be little doubt about essential offense facts.  Especially with guilt not in question, with a large number of sympathetic victims, and with the offender's ugly motive making the indisputably a hate crime conparable to a form of domestic terrorism, I do not really understand why more than eight weeks, let alone eight months, are needed to decide whether to pursue a capital charge here.  

Of particular significance, if a capital charge was justified against against Dzhokhar Tsarnaev, whose crime slaughtered many fewer individuals and whose was arguably less culpabale than co-conspirator older brother, I have a had time figuring out why a capital charge against Dylann Roof would not be justified.  Indeed, at a time when so many are understandably concerned with whether modern criminal justice systems understand that "black lives matter ," I fear that any decision not to seek a capital charge in this case would create the impression that the nine black lives extinguished in Charleston do not matter as much as just three non-black lives extinguished in Boston.

February 13, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7)

Friday, February 12, 2016

Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity

This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:

Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."

He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."

It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.

It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.

To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.

Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors.  He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15.  "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources."  Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.

February 12, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Thursday, February 11, 2016

Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

In this appeal, we address for the first time whether 18 U.S.C. § 16’s statutory definition of “crime of violence” is unconstitutionally vague.  We consider this question in the light of the Supreme Court’s recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Johnson v. United States, 135 S.Ct. 2551 (2015).  In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining “violent felony” as any crime that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  Section 16 contains a similar definition: a “crime of violence” is “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA’s language to suffer the same unconstitutional fate.  United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We agree, and accordingly hold § 16 unconstitutional.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

It is the uncertainty that charms one. A mist makes things wonderful.” Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but not in the criminal law, where too much uncertainty denies defendants fair notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)....

In summary, we should not strike Congressional law, 18 U.S.C. § 16(b), because, first, the concerns raised by the Court in Johnson with respect to ACCA’s residual clause are less implicated by Section 16(b); second, because Leocal is precedent only the Supreme Court should adjust; and, third, because Section 16(b) does not involve the interplay of interpretative method and statutory text causing the double indeterminacy that was the due process muddle rejected in Johnson.  Gonzalez-Longoria was on sufficient notice that his prior crime of Assault Causing Bodily Injury with Prior Conviction of Family Violence is one society condemns as violent because it involves a substantial risk that, in the course of its commission, force will be used against another.  I dissent.

February 11, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (2)

Wednesday, February 10, 2016

"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"

The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case.  If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice.  However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker.  Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging.  Next, we consider how the use of such evidence continues to expand in the criminal trial process.  Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence.  Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

February 10, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (4)

Tuesday, February 09, 2016

Post-Hurst hydra heads emerging in Alabama

Download (1)As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.  Now, as reported in this local article, headlined "Capital murder suspects across Alabama seek to bar death penalty," some post-Hurst hydra heads are emerging in the Yellowhammer State.  Here are the basic details:  

Attorneys for 25-year-old Antonio McCary Jones, a Birmingham man charged with killing a fellow drug dealer by shooting him 14 times, last week told a judge that if Jones is found guilty the death penalty should not be an option. Alabama's sentencing scheme in death penalty cases is the same as Florida's, which was ruled unconstitutional last month by the U.S. Supreme Court, Jones' lawyers argued Friday.

In both Alabama and Florida, judges are allowed to override jury recommendations for either life without parole or death.  "The dilemma we're trying to resolve is do we want 12 people deciding death or life, or one person," Joe Basgier, one of Jones' lawyers, said after the hearing.  Basgier and Jones' other attorney, Hube Dodd, are not alone in making the argument.

The ink was hardly dry on the U.S. Supreme Court's Jan. 12 ruling in Hurst v. Florida before lawyers around Alabama began filing motions seeking to bar the death penalty for their clients facing capital murder charges because of the similarities between the two states' capital punishment sentencing laws.

That has had local district attorneys scrambling to defend Alabama's capital sentencing law and putting circuit judges in the position of having to hold hearings and rule on the issue.  Several judges have already denied the motions, at least one has taken it under advisement, and a few are awaiting further guidance.

District attorneys and Alabama Attorney General Luther Strange say Alabama's law is not the same as Florida's and has already been declared constitutional.  "The U.S. Supreme Court ruling regarding the Florida death penalty does not affect Alabama's law. The U.S. Supreme Court specifically upheld Alabama's current system as constitutional in the case of Harris v. Alabama in 1995," according to a statement from the Attorney General's Office.

"In the Florida case (Hurst), the holding is that a jury must find the aggravating factor in order to make someone eligible for the death penalty.  Alabama's system already requires the jury to do just that," according to the Attorney General's statement. "The jury must unanimously find an aggravating factor at either the guilt or sentencing phase — such as when the murder was committed during a robbery, a rape, or a kidnapping."...

Defense attorneys argue that that ultimate decision to sentence a defendant to death is made by a judge and not a Jury, just as in Florida.  "The jury does make its own sentencing recommendation after a comparable weighing process, but that recommendation 'is not binding upon the court,'" according to Basgier and Dodd's motion.

Rarely, if at all, has a judge in Alabama overridden a jury recommendation for death and sentenced a suspect to life without parole.  But there are a number of cases in which a judge has overridden a life without parole recommendation and imposed a death sentence.

According to several motions filed by defense attorneys around Alabama, the U.S. Supreme Court in its ruling in the Hurst case also overruled two previous case — Hildwin v. Florida in 1989 and Spaziano v. Florida in 1984.  Both those cases had been used by the court in upholding Alabama's death sentencing scheme in 1995, according to the motions. "As a result, the cases that upheld Alabama's death penalty scheme are no longer valid," according to Basgier and Dodd's motion, which mirrors other defense lawyer's "Hurst" motions.  The Alabama Attorney General's Office had filed a brief in the Hurst case asking that the U.S. Supreme Court not overrule Spaziano because that case "had provided the legal foundation for Alabama's death penalty scheme," according to Basgier and Dodd's motion.

February 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Prez Obama signs into law the "International Megan's Law," and group immediately files suit against passport scarlet letter requirement

As reported in this AP piece, headlined "Sex offenders challenge new federal passports law," over the last 24 hours President Obama signed a somewhat controversial federal sex offender law and a group has filed suit to block part of its mandates. Here are the basics:

A civil rights group has filed a lawsuit challenging a law that will require sex offenders to be identified on their passports.

President Obama signed the International Megan's Law bill into law on Monday following Congress passing the bill last week. The California Reform Sex Offender Laws filed the lawsuit in U.S. District Court in San Francisco, challenging the laws, which requires the Secretary of State to add "unique identifiers" to the passports of all registered sex offenders.

Passports today are used as a primary form of identification as well for entry into a foreign country. A passport symbol that identifies an individual as a registered sex offender could place at significant risk that person as well as others traveling with them, including family members and business colleagues, the lawsuit says.

This page on the site of the California Reform Sex Offender Laws organization provides these additional details about the suit:

The lawsuit will be filed in U.S. District Court, San Francisco, on behalf of four registered citizens. The lawsuit alleges that International Megan’s Law violates several provisions in the U.S. Constitution including the First, Fifth and Fourteenth Amendment, as well as the equal protection and ex facto clauses. Subsequent to filing of the lawsuit, an application for a Preliminary Injunction will be filed which, if granted, would stop the law from being implemented. 

A helpful reader emailed me a copy of the 27-page complaint in this case, and I have provided it for downloading here:  Download Complaint filed against IML Feb 2016

February 9, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18)

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

February 9, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Monday, February 08, 2016

Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics

This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall).  Here are all the important details:

Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics.  In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison.  Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.

One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.”  Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday.  The aide added that this section was the subject of the most complaints from conservatives.

The second major change is to Section 104 of the bill.  That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery.  Those changes could be applied retroactively for current inmates.  Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence.  Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said.  “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.

The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year.  The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).

But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.

I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions.  But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill.  If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.

Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition.  But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote.   Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality.  Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.

Recent prior related posts on SRCA 2015:

February 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Notable battles in Texas over local sex offender residency restrictions in small towns

A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:

While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."

At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.

But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.

The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....

Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.

The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....

Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life.  Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said.  "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.

But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.

I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism."  But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.

February 8, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want.  The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:

A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.

“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them.  I don’t see his children at risk.”

Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4.  The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.

Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines.  Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.

Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors.  He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger.  “There are troubling issues and we are talking about children,” Gopstein argued.

But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said.  Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.

The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases.  It was unclear whether he was serious.

Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.

The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.

Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases.  For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.

February 8, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, February 04, 2016

"Obey All Laws and Be Good: Probation and the Meaning of Recidivism"

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

Probation is the most commonly imposed criminal sentence in the United States, with nearly four million adults currently under supervision.  Yet the law of probation has not been the focus of sustained research or analysis.  This Article examines the standard conditions of probation in the sixteen jurisdictions that use probation most expansively.  A detailed analysis of these conditions is important, because the extent of the state’s authority to control and punish probationers depends on the substance of the conditions imposed.

Based on the results of my analysis, I argue that the standard conditions of probation, which make a wide variety of noncriminal conduct punishable with criminal sanctions, construct a definition of recidivism that contributes to overcriminalization.  At the same time, probationary systems concentrate adjudicative and legislative power in probation officers, often to the detriment of the socially disadvantaged.  Although probation is frequently invoked as a potential solution to the problem of overincarceration, I argue that it instead should be analyzed as part of the continuum of excessive penal control.

February 4, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (2)

Tuesday, February 02, 2016

Post-Hurst hydra develops new heads in Delaware as all capital cases get halted

In this post last month not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various courts as judges try to make sense of just what Hurst must mean for past, present and future capital cases.  Now, as reported in this local article, headlined "All Delaware executions, capital murder trials halted," a new head for this litigation hydra emerged yesterday.  Here are the basic details:  

All pending capital murder trials and executions have been halted until the Delaware Supreme Court determines the constitutionality of the state's death penalty law.  The temporary stay, issued by President Judge Jan R. Jurden on Monday, is expected to impact at least four death penalty cases that were scheduled to go to trial in the next 120 days. Likewise, a spokesperson for the Department of Correction said Monday that all executions are also on hold, even though none were scheduled for the coming months.

"I think it is a smart decision," said Delaware's Chief Defender Brendan O'Neill. "It makes sense to stay the cases until we get the Supreme Court's ruling on whether our death penalty statute is constitutional."  The stay will give the Delaware Supreme Court time to consider five questions that have arisen in light of a recent U.S. Supreme Court ruling for Florida.

Last month, the U.S. Supreme Court struck down Florida's death penalty system, saying it gives too much power to judges, instead of juries. In that case, a man was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola and was sentenced to death by a judge.  Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. Judges in Delaware have not been using that power.

The top U.S. court's recent ruling left prosecutors, defense attorneys and judges in Delaware with many questions about how to proceed in the state's approximately two dozen death penalty cases and with the 14 men on death row. In light of this, Superior Court Judge Paul Wallace solicited questions from Attorney General Matt Denn's office and O'Neill's office that they would like the Delaware Supreme Court to consider.  The highest state court agreed last week to address the questions and set a timeline of mid-April for all briefs to be submitted.

The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer.  Police have said the shooting occurred during a drug deal gone awry....

Jurden wrote in the administrative directive Monday that the certified questions are directly relevant to the pending capital murder trials. "Specifically, the determination will control the procedure to be applied in all such cases," she wrote.  "A temporary stay of the pending trials, penalty hearings, and any applications asking this court to declare Delaware's capital sentencing scheme unconstitutional is warranted to ensure the application of the law consistent with the Supreme Court's determination of the certified questions."  Jurden went on to say that temporary stays have previously been entered, such as in 2003 and 1992, when questions about the validity of the procedures were being considered by the Delaware Supreme Court.

The ensuing court battle is not the only challenge to the state's death penalty law. A bill to abolish the death penalty failed 23-16 in the House of Representatives on Thursday, but some lawmakers are vowing to give it a second chance this spring.

The administrative directive referenced in this article is available at this link.

Prior related posts:

February 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges

A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here).  Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:

Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.).  Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).  He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).

We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent.  Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart.   Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.

In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:

The form as a whole seems designed to encourage judges to sentence within the range.  A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era.  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory.  The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit.  The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences.  Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.

February 2, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, February 01, 2016

"Accommodating Justice: Victim Impact Statements in the Sentencing Process"

The title of this post is the title of a forthcoming book by Tracey Booth, the introduction to which can be downloaded here via SSRN.  Here is the SSRN abstract:

Prominent criminologist, David Garland, has argued that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide”.

A victim impact statement (VIS) is a highly nuanced and individual narrative that can operate as both an informational device in the sentencing process and an expressive mechanism for crime victims.  From the law perspective, VISs provide the court with details of harm caused by the offence and the consequences of the offending in order to further purposes of sentencing.  As an expressive mechanism, VISs offer victims the opportunity and space to express their feelings, tell their personal story of the aftermath of crime, and be heard by the court, the offender, and the wider community.

Though a well-established feature of contemporary sentencing hearings (at least in superior courts) VISs remain controversial in common law jurisdictions.  The ‘non-legal’ nature of VISs has generated uncertainty in relation to the functioning of the sentencing hearing and concerns have been raised that VISs are: inconsistent with established legal values, detrimental to the offender’s entitlement to a fair hearing, detrimental to victims’ wellbeing, and harmful to the integrity of the legal proceedings.

Accommodating Justice: victim impact statements in the sentencing process explores complex territory where VISs, the law and legal institutions intersect with a focus on the requirements of fairness, most particularly in the courtroom.  And it does so from multiple perspectives: courts, offenders and victims.  The book draws from a range of theoretical and doctrinal sources as well as empirical studies from Australia, Canada, the United States and the United Kingdom.  An ethnographic study of the performance of VISs in homicide sentencing hearings in the NSW Supreme Court woven through most chapters provides an innovative and evidence-based approach to the issues.

February 1, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4)

Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints

As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:

Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled.  A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau.  The case had been argued before the court earlier this month.

In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.

In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient.  "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."

But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation.  Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions.  "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."

The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.

February 1, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8)

Sunday, January 31, 2016

Notable analysis of many capital defendants in Florida condemned to death by split juries

The Tampa Bay Times has this new detailed analysis of the history and impact of the Sunshine State's willingness to send persons to death row based on split jury recommendations.  The article is headlined "Only in Florida: How the nation’s lowest bar for the death penalty has shaped death row," and here is how it gets started:

Florida has more than 170 people on death row today who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, a Tampa Bay Times analysis has found.

Unburdened by the need to reach a unanimous decision, Florida juries typically don’t.  Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.

No other state allows juries to recommend death by a 7-5 vote.  Of the 32 states that have the death penalty, 29 require a unanimous vote of 12.  Alabama requires 10.  Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.

This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.

The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials.  The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.

The Times found that prisoners who were sentenced to death based on non-unanimous jury recommendations were far more likely to have their cases overturned on direct appeal, or to be ultimately acquitted.

Florida leads the nation in death row exonerations.  Of the 20 people who have been exonerated and for whom sentencing information is available, 15 were sent to death row by a divided jury.  Three others were cases in which judges imposed the death penalty over a jury’s recommendation of life in prison.

January 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, January 29, 2016

Forces in Oklahoma talking about criminal justice reform via ballot initiative ... prompting question "is direct democracy the best way to approach criminal justice reform?"

This local article, headlined "Coalition wants to give voters a choice on criminal justice reform in Oklahoma," highlights that a number of prominent advocates for criminal justice reform in the Sooner State want to soon have citizens voting directly on these reforms. Here are the basics:

A politically diverse group of state officials, policy advocates, and members of the business community came together Wednesday to announce they were joining forces to stop a problem the state can no longer ignore: Oklahoma's high incarceration rates. “We're running a factory to create future felons,” said Bancfirst Corp. Chairman Gene Rainbolt.  “It's ridiculous.”

Addressing the media at the state Capitol, Rainbolt was among about one dozen other prominent Oklahomans who said they had formed a coalition, known as Oklahomans for Criminal Justice Reform, and they plan to take the issue straight to the voters through two ballot initiatives.

“We need to correct corrections, and if we're going to call it the Department of Corrections we need to do some correcting. If not now, when? We are at 119 percent capacity,” said Rep. Pam Peterson, R-Tulsa, referencing the state's swelling prison population. More than 28,000 inmates — the highest prison population the state has ever seen — sit behind bars in Oklahoma today.

If successful, the coalition will place two ballot measures before voters, said former state House Speaker Kris Steele. The first will lower several nonviolent felonies that would warrant prison time, such as simple drug possession and writing fraudulent checks, to misdemeanors that would call for community-based treatment....

The second initiative would task the Office of Management and Enterprise Services with tracking the number of offenders who would be diverted to treatment rather than prison and calculate the savings.  Those funds would be held in a lock box, to be distributed to county governments for substance abuse treatment, mental health care, and offender supervision. This money could be going to schools, health care, and “the other building blocks for a good state,” said David Blatt, president of the Oklahoma Policy Institute....

In order to get both questions on a state ballot, the coalition will have to gather almost 68,000 signatures for each initiative. Several bills have been filed for the upcoming Legislative session that will address many of the same solutions proposed in the ballot measures, said Rep. Peterson, and their hope is to complement those efforts.

Peterson noted Steele's work years before with the Justice Reinvestment Initiative, a sweeping criminal justice reform bill passed by the state Legislature in 2011. JRI would have moved Oklahoma's justice system in a similar direction, but it was never fully funded and eventually stymied. Peterson said reform of this level doesn't happen overnight. “Speaker Steele really started in 2011, but it's taken this long to get to this point,” she said when asked if the political climate is right for sentencing reform. “So, it takes a while.”

I find this story of taking reform efforts directly to the voters in Oklahoma especially in the wake of California Gov Jerry Brown earlier this week (as blogged here) proposing a state ballot initiative to expand parole and make other reforms that I would usually expect to be pursued via traditional legislative action. And, of course, as often highlighted in posts at my other blog, Marijuana Law, Policy and Reform, ballot initiatives have been the primary driver of major marijuana reforms in the states over the last decade.

I tend to be a huge fan of so-called "direct democracy" for a wide number of legal process reasons, but these latest developments in California and now Oklahoma leave me to wonder a lot if criminal justice reform by plebiscite ought to be seen as a truly welcome development.

January 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 28, 2016

"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"

The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:

Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.

Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism.  For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women.  Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women.  With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.

January 28, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2)

California Gov Jerry Brown proposes state ballot initiative to expand parole and make other reforms

As reported in this Los Angeles Times article, headlined "Gov. Brown to seek November ballot initiative to relax mandatory prison sentences," the chief executive of the largest state in our Union is asking voters to give certain executives and judges more power to reduce state sentences after their imposition. Here are the basic details:

Almost four decades after he signed a law mandating strict sentences for the most serious crimes, Gov. Jerry Brown on Wednesday moved to ease its effect, proposing inmates convicted of nonviolent offenses be given a chance at early release.  “Let's take the basic structure of our criminal law and say, when you've served fully the primary sentence, you can be considered for parole,” Brown said in announcing a November ballot initiative to streamline the rules — one he estimated could affect thousands of current inmates.

Rather than change sentencing policy, the proposal would allow corrections officials to more easily award credits toward early release based on an inmate's good behavior, efforts to rehabilitate or participation in prison education programs. “It's well-balanced,” Brown said. “It's thoughtful.”

The effort is largely in response to the lingering effects of a 2009 federal order for California to reduce its prison population, Brown said.  But he made clear that it also is meant to improve a criminal justice system that offers too few chances at rehabilitation. “By allowing parole consideration if they do good things,” the governor said of some inmates, “they will then have an incentive … to show those who will be judging whether or not they're ready to go back into society.”

Brown had been hinting for months that he was considering a key change in criminal justice policy, and consulted with a number of academics and inmate advocates on how to proceed.  He was joined Wednesday by a handful of prominent law enforcement and religious leaders.  While it was unclear whether they were ready to fully embrace each detail of the measure, they praised Brown's focus on weeding out those serving time for nonviolent offenses. “I think this will effectively open bed space for those who richly deserve to be there,” Los Angeles Police Chief Charlie Beck said.

The initiative also would authorize the state parole board to consider early release for nonviolent inmates who complete a full sentence for their primary offense and it would require a judge to decide whether felons as young as 14 should be tried in juvenile or adult court.  That final element of the initiative would undo a system approved by voters in 2000 that handed that power to prosecutors.

Once the measure is given a formal title and summary by the attorney general's office, Brown and his political team will need to gather more than 585,000 valid voter signatures to qualify it for the Nov. 8 statewide ballot. The governor likely has the needed resources: Campaign funds left over from his 2014 reelection bid and previous successful ballot measures total some $24 million....

Patrick McGrath, district attorney of Yuba County, said Brown's plan — by offering more pathways to parole — also may send the wrong message to crime victims who believe their perpetrators received a certain punishment. “Now, down the line, they're told 10 year [sentences] are not really 10 years,” he said. “I think this is very, very corrosive to the faith that the public has ultimately in the criminal justice system.”  Loyola Law professor Laurie Levenson, a former federal prosecutor, said the proposal would make a judge's sentence only a starting point. “People could be released from prison years earlier based on what the parole board wants to do,” she said....

Of particular interest will be how Brown shapes the narrative of the political campaign in support of his parole initiative. The fall statewide ballot already is expected to be one of the longest in more than a decade, which will mean voters are deluged with a flood of advertisements, mailers and messages. The ballot also likely will feature other high-profile public safety debates, including a gun violence initiative promoted by Lt. Gov. Gavin Newsom and perhaps dueling initiatives to either eliminate or strengthen California's death penalty.

Prof David Ball, who has researched and written a lot about California sentencing realities, provides a deeper dive into what all this could really mean in this Reality-Based Community post. Here is how this post starts:

Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot.  This is potentially huge news — if nothing else, it may signal that the political calculation on crime could be changing — but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.

The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.”  Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus).  More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements.  I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.

January 28, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"Judicial Power to Regulate Plea Bargaining"

The title of this post is the title of this new article by Darryl Brown available via SSRN. Here is the abstract:

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated.  In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process.  Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements.  Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems.  Both rationales proved enormously influential.  Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.

This article challenges these longstanding rationales.  Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process.  This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures.  By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.

January 28, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 27, 2016

Florida trial judge refuses to allow capital case to proceed in wake of SCOTUS Hurst ruling

A helpful reader altered me to this notable local article reporting on a notable local ruling concerning the administration of the death penalty in Florida in the wake of the Supreme Court's ruling in Hurst earlier this month.  Here are the basic details:

Days after the Supreme Court struck down the way Florida sentences people to die, a Pinellas County circuit judge has ruled that the death penalty cannot be pursued in a first-degree murder case scheduled for trial next month.

In an order filed Friday, judge Michael Andrews rejected prosecutors' notice that they intend to seek the death penalty in the case of a Pinellas Park father, Steven Dykes, accused of fatally shaking and striking his 3-month-old daughter in February of last year. "This court concludes that there currently exists no death penalty in the State of Florida in that there is no procedure in place," Andrews wrote.

The order is the first of its kind in the state following the Hurst vs. Florida decision on Jan. 12, said Pinellas-Pasco public defender Bob Dillinger. In an 8-1 opinion, the Supreme Court found Florida's death penalty procedures unconstitutional because juries play only an advisory role in recommending life or death. Judges make the ultimate decision after giving "great weight" to jurors' recommendations....

Dillinger, whose office is representing Dykes, said he agreed with Andrews' ruling. "What the judge has done is absolutely correct," Dillinger said, adding Andrews is "right on point."

Prosecutors could file an appeal in the case. Another hearing is scheduled on Feb. 16, court records show, with the trial slated to begin Feb. 29. Chief Assistant State Attorney Bruce Bartlett said his office "respectfully" disagrees with judge Andrews, adding that the Hurst decision is not final yet. That will happen after the state asks for a rehearing. Bartlett also said the Legislature still has to create new sentencing guidelines in response to the court's decision.

"They issue an opinion and they don't issue any guidelines on how to fix it, and what to do next," Bartlett said of the Hurst opinion. "It's just a dilemma that faces us because the question is how exactly do you fix it? And they didn't really lay out how they thought it should be fixed, so it kind of lends you to, you know, potentially all kinds of challenges."

Lawmakers have previously said that they are making fixes to the death penalty sentencing system a priority this session. "It's not the Supreme Court's job to lay out the procedural guidelines," said Charles Rose, a Stetson University law professor and the director of the Center for Excellence in Advocacy. "That's an issue for every legislature in every state to deal with independently."

The fate of other murder cases remains in flux until new sentencing guidelines are signed into law, said St. Petersburg criminal defense lawyer Marc Pelletier. "Until the Legislature does its part," he said, "we're still going to be in a situation where everything's unclear."...

[L]aw experts across the state agreed with Andrews' order. "The judge has it absolutely right," said Teresa Reid, a University of Florida Levin College of Law professor and assistant director of the Criminal Justice Center. "You need to have a statute in place regarding sentencing, and we don't have that right now."

She said that the judge's responsibility is to make sure the trial is fair and is conducted under law. "It seems to me the appropriate thing to do is wait," she said. "We can't proceed when we don't have the procedure in place."

Rose, the Stetson law professor, said the decision "makes perfect sense." "Judge Andrews should be commended for doing what the law requires," he said. "It's not only sound, it's courageous because he's the first to step out on the ledge on this issue."

Rose predicted that judges across the state would and should follow suit. "My expectation is that there won't be any new death penalty cases tried," he said.

Prior related posts on Hurst and its aftermath:

January 27, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

New York Times editorial highlights "Mr. Obama’s Pardon Problem"

Today's New York Times includes this notable editorial about the Obama Administration's recent clemency efforts and the need to revamp the entire way in which federal clemency has been approached in modern times. Here is how it begins:

The sudden resignation of the federal pardon attorney, Deborah Leff, an Obama appointee, is the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken.

The pardon attorney’s office, which operates out of the Justice Department, is responsible for reviewing thousands of petitions for pardons and sentence commutations and for making recommendations for clemency to the president. The president’s power to grant mercy in these cases is nearly unlimited, but for most of his time in office, Mr. Obama, like his recent predecessors, has exercised this power only rarely.

Since 2014, Mr. Obama has focused more attention on this issue. To overhaul the notoriously backlogged pardon office, he announced new standards encouraging tens of thousands of federal prisoners to request reductions of their inordinately long drug sentences.  And he hired Ms. Leff to replace Ronald Rodgers, whose incompetent tenure included a finding by the Justice Department’s inspector general that in 2008 he hid information from President George W. Bush in recommending the denial of a clemency petition.

Ms. Leff’s appointment was a promising sign that the dysfunctional pardon process would be repaired.  But her tenure didn’t last long.  On Jan. 15, barely one year after she was formally appointed, she abruptly announced she would step down at the end of this month, saying only that the work of the office should “move ahead expeditiously and expand.”

As she leaves, more than 10,000 clemency petitions are waiting for review. While the pardon office, which has 10 lawyers, has remained virtually the same size it was 20 years ago, the number of petitions has increased almost sevenfold. The department recently announced plans to hire 16 new lawyers, but this would still be far below the number needed to process the backlog.

The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict.  The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions.  As one former pardon attorney put it, the prosecutors are “determinedly and irreconcilably hostile” to clemency.

January 27, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"

The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:

For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building.  Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system.  This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control.  The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.

These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem.  One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied.  Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....

When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal.  A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.

Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations.  In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state.  That failing opens the door to prosecutorial abuse.  Nonetheless, the Department of Justice is raising concerns about the proposed legislation.  Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!

What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one.  It does not undo any criminal provision that already has a prescribed state of mind.  Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides.  And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes.  But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.

Some recent and older related posts:

January 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

What should we expect after Montgomery from states that had resisted Miller retroactivity?

The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?".  Here are excerpts:

[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”

At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.

From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”

In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...

Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...

As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.

Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”

It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.

It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.

Prior related post on Montgomery:

January 27, 2016 in Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 25, 2016

Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?

The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence.  It was prompted in part by the first post-Montgomery e-mail I received:  it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."

For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases.  But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.

Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely).  Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences.  But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same.  The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.

Prior related post on Montgomery:

January 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Sunday, January 24, 2016

Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"

The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut.  But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing.  I recommend this commentary in full, and here are excerpts:

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness.  But after a falling-­out with the head of the gang, he turned over a stash house to the police and fled the state.  When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.

Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them.  So which man was I sentencing?  The murderer or the remorseful cooperator?

The prosecutor rewarded his cooperation by filing a so­called 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced.  Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....

In the years that followed, I often wondered whether his remorse was strong enough to overcome his past.  In 2012, I had the chance to find out.  While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby.  I wanted to know whether he had become a better citizen or a better criminal.  So I asked a prison staffer if I could meet with him in private.

That the warden felt no need to post a guard was my first clue that he had changed for the better.  He was working in his first real job at the prison industries factory and had been promoted to supervisor.  He showed me recommendations from prison employees for good jobs on the outside.  He brought a folder full of certificates he had earned for attending classes.  He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.

The meeting made me proud of his accomplishments, but sad that I had not been more confident in him.  He still had several years left on his sentence, but it was clear that he had served enough time.  After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early.  But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money.  So he had to stay in prison, at an annual cost of $30,000 to taxpayers.

The tragedy of mass incarceration has recently focused much attention on the need to reform three-­strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to re­evaluate the sentences they’ve imposed.  It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble.  But this doesn’t incentivize prisoners to take advantage of work or study opportunities.

Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.

This “second-­look review” should be available only to prisoners who are supported by their wardens.  To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two­-thirds of a mandatory minimum sentence).

Factors in support of an early release should include more than just clean disciplinary records in prison.  Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....

I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s.  In that system, a judge who believed that a defendant should spend three years locked up would impose a nine­year sentence because parole was likely to be granted after he served one­-third of it.  But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded.  In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....

A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.

UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."

January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Saturday, January 23, 2016

New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines

As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:

The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights.  The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.

Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests.  The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole.  But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.

Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests.  Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....

A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders.  The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.

But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions.  The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."

Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes.  "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently."  Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.

The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation.  "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.

But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities."  If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."

The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.

January 23, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (10)

Friday, January 22, 2016

Over dissent of Justice Breyer, Alabama goes forward with its first execution in years

As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:

Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.

Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore.  He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....

After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned."  Brooks did not appear to struggle during the administration of the drugs.  His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered.  Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.

Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter.  She said she hoped Brooks had "made peace with God."  Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....

Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin....  The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.

Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used.  Her partially clothed body had been found under her bed and she had been beaten with a barbell.

Brooks was one of 187 inmates on Alabama Death Row.  Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.

The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.

This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016).  See Harris v. Alabama, 513 U. S. 504 (1995).  I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.

JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.

Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.”  Ala. Code §13A–5–47(e) (2006).  For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari.  Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995).  Florida’s scheme is unconstitutional.  See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.  See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2).  I respectfully dissent.

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

Will FBI child porn operations generate same controversy as Fast and Furious?

The question in the title of this post is prompted by this new USA Today report headlined "FBI ran website sharing thousands of child porn images."  Here are the basics from the article:

For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.

The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.

The Justice Department acknowledged in court filings that the FBI operated the site, known as Playpen, from Feb. 20 to March 4, 2015. At the time, the site had more than 215,000 registered users and included links to more than 23,000 sexually explicit images and videos of children, including more than 9,000 files that users could download directly from the FBI. Some of the images described in court filings involved children barely old enough for kindergarten.

That approach is a significant departure from the government’s past tactics for battling online child porn, in which agents were instructed that they should not allow images of children being sexually assaulted to become public. The Justice Department has said that children depicted in such images are harmed each time they are viewed, and once those images leave the government’s control, agents have no way to prevent them from being copied and re-copied to other parts of the internet.

Officials acknowledged those risks, but said they had no other way to identify the people accessing the sites. “We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” said Ron Hosko, a former senior FBI official who was involved in planning one of the agency’s first efforts to take over a child porn site. “There was no other way we could identify as many players.”

Lawyers for child pornography victims expressed surprise that the FBI would agree to such tactics – in part because agents had rejected them in the past – but nonetheless said they approved. “These are places where people know exactly what they’re getting when they arrive,” said James Marsh, who represents some of the children depicted in some of the most widely-circulated images. “It’s not like they’re blasting it out to the world.”...

But they have also prompted a backlash of a different kind. In a court filing, a lawyer for one of the men arrested after the FBI sting charged that “what the government did in this case is comparable to flooding a neighborhood with heroin in the hope of snatching an assortment of low-level drug users.” The defense lawyer, Colin Fieman, asked a federal judge to throw out child pornography charges against his client, former middle school teacher Jay Michaud. A federal judge is scheduled to hear arguments on that request Friday.

Fieman said more than 100,000 Playpen registered users visited the site while it was under the FBI’s control. The Justice Department said in court filings that agents had found “true” computer addresses for more than 1,300 of them, and has told defense lawyers that 137 have been charged with a crime, though it has so far declined to publicly identify those cases.

“The government always considers seizing an illegal child pornography site and removing it from existence immediately and permanently,” Justice Department spokesman Peter Carr said. “While doing so would end the trafficking of child pornography taking place on that one website, it would do nothing to prevent those same users from disseminating child pornography through other means.” Still, he said, “The decision whether to simply shut down a website or to allow it to continue operating for a brief period for a law enforcement purpose is a difficult one.”

Justice officials said they were unable to discuss details of the investigation because much of it remains under seal, at their request. The Justice Department said in court filings that agents did not post any child pornography to the site themselves. But it did not dispute that the agents allowed images that were already on the site to remain there, and that it did not block the site’s users from uploading new ones while it was under the government’s control. And the FBI has not said it had any ability to prevent users from circulating the material they downloaded onto other sites.

“At some point, the government investigation becomes indistinguishable from the crime, and we should ask whether that’s OK,” said Elizabeth Joh, a University of California Davis law professor who has studied undercover investigations. “What’s crazy about it is who’s making the cost/benefit analysis on this? Who decides that this is the best method of identifying these people?”

January 22, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, January 20, 2016

Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures

Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences.  The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp.  Here are excerpts from the start and body of the opinion highlighting these realities: 

The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man.  The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.”  And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....

As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt.  Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....

Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....

The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense.  Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....

Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).

The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12.  The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.

In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.

January 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, January 19, 2016

Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida

In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.

Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:

As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in.  Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.  

Prior related posts:

January 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, January 16, 2016

"The End of the Death Penalty Isn't Near"

The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida.  Here are excerpts:

The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again.  The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter.  The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific.  The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines.  According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt.  The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....

In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate.  Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.

The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing.  Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.

And what about Breyer?  He still hasn’t given up on the constitutionality of the sentencing guidelines.  He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury.  He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.

The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.

Prior related postson Hurst:

January 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, January 15, 2016

Supreme Court grants cert on high-profile political corruption case and to explore malicious prosecution suits

As reported in this extended post by Lyle Denniston at SCOTUSblog, the Supreme Court granted certiorari review on eight new cases this afternoon. None of the cases involve sentencing issues, but there are two cases with criminal justice elements. Here are excerpts of Lyle's account of these grants and their place within the Court's overall docket:

Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor. The Court also added seven other cases to its docket for decisions this Term.

The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar. That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited....

The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party.  Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing.  The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison.  She currently has an appeal pending in a lower court.

His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws.  The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial.  McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices....

Manuel v. Joliet, Ill.: Does an individual who claims to have been a victim of police fabrication of evidence have a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.

January 15, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Intriguing new poll on 2016 Californian perspectives on the death penalty

This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:

Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.

The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014.  But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.

California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....

Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin.  If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.

"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."

Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.

California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.

January 15, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 14, 2016

Florida Supreme Court wasting no time trying to figure impact of Hurst

This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences.  The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:

The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.

After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....

Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.

January 14, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, January 13, 2016

"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"

The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.

January 13, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Might misguided mens rea reform concerns derail federal sentencing reform's momentum?

The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge."  Here is how the article starts:

The stars seem to have aligned.  An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.

Even with that common ground, however, tensions are bubbling up.  A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system.  That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event.  The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision.  “It has to be overcome.  This is a critical element to doing justice in this country.”

The disagreement points to the possibility that negotiations will break down.  It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise.  The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.

At stake is a question of fairness.  Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity.  Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.

That conflict could derail sentencing reform.  Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.

As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country."  Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.

Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform.  Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries.  Blah. 

Some recent and older related posts:

January 13, 2016 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, January 12, 2016

A few (too) quick thoughts on the post-Hurst hydra

Download (1)As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona.  Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring.  I tried to tell them that was insane.  They didn't listen.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be  held responsible for the capital mess Florida now finds itself in.  Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House).  I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.

As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal).  Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.

Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now.  Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst.  Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.

Prior related post:

January 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23)

SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment

The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here).  Here is how the opinion of Justice Sotomayor for the Court gets started and ends:

A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty.  The judge so found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional.  The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....

The Sixth Amendment protects a defendant’s right to an impartial jury.  This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.

January 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)