Friday, January 20, 2017
You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?
I am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home. My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents. But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:
“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.
But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.
Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.
Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.
But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.
He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.
But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.
Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.
Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”
Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.
The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.
Thursday, January 19, 2017
SCOTUS adds a qualified immunity case to its docket
Amy Howe at SCOTUSblog has this new post explaining why the Justices issued a couple cert orders today and detailing the particulars of the two cases taken up by the Court. Here is part of that post that should interesting criminal justice fans:
With the Supreme Court closed tomorrow for the inauguration of President-elect Donald Trump, the justices met today, one day early, for their private conference. One week after adding 16 new cases to their docket, today the justices granted review in two more — potentially filling out their merits docket for the term.
The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” — who was not at the party, but who admitted that she did not have the owner’s permission to use the house.
The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.
The federal trial court and the U.S. Court of Appeals for the District of Columbia Circuit agreed with the partygoers and further ruled that the police officers were not entitled to qualified immunity. The court of appeals denied the city’s motion for rehearing en banc; in dissent from that denial, Judge Brett Kavanaugh wrote (among other things) that this “should be a fairly easy case for qualified immunity.”
The court had relisted Wesby a whopping eight times. Multiple relists can often signal either that the justices are considering a summary reversal — that is, without briefing or oral argument on the merits — of the lower court’s decision or that a justice is writing a dissent from the denial of certiorari, but today the justices instead agreed to review the case on the merits.
Using execution protocol with midazolam, Virginia completes second execution of 2017
As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized. Here are the details:
Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.
Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment. Kinney told reporters after the execution there did not appear to be any complications with the injection.
According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration.... Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.
Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.
Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.
Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.
I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.
A revised empirical look at outcomes achieved by federal public defenders and court-appointed attorneys
In this post from this past summer I noted an intriguing empirical paper posted on SSRN by Yotam Shem-Tov in which the authored, after taking a deep dive into "data from all multiple defendant cases in federal courts between 2001-2014," reached the finding that "that defendants assigned a public defender in co-defendant cases had slightly worse outcomes." A few federal public defenders let me know that the author was checking his data after receiving feedback, and the revised paper now, available here, carries a slightly different title and a significantly different key finding in its abstract:
"An Investigation of Indigent Defense Systems: Public Defenders vs. Court-Appointed Attorneys" by Yotam Shem-Tov
Abstract: To provide essential, constitutionally mandated legal services for defendants without financial means, US courts employ indigent defense systems composed of private court-appointed attorneys and public defenders’ organizations. I investigate the public defender’s causal effect on defendant sentencing outcomes relative to private court-appointed attorneys using a new “twins design” identification strategy. I argue and show empirically that in multiple defendant cases the decision of who is assigned to the public defender organization in jurisdiction X, a large urban locality, can be treated as close to a randomized experiment, which can be utilized to measure the effectiveness of court-appointed private attorneys relative to public defenders. I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes. Employing a similar identification strategy in federal courts finds that public defenders perform at least as well if not better then court-appointed attorneys in multiple defendant cases. I provide strong evidence of selection in the assignment of attorney types to defendants in both jurisdiction X and federal courts, which makes a naıve comparison invalid and misleading.
My understanding is that the new empirical analysis now more properly accounts for the fact that public defenders typically will represent the lead defendant (and thus the one usually most culpable defendant) in multiple defendant cases, and thus a proper analysis needs to account for this critical variable.
Wednesday, January 18, 2017
Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist
The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:
We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable." We declined at that time to adopt their proposed "global remedy." However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions. As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.
After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants." We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.
We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment. In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered. In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one. In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial. If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.
We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts. But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions. And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion. The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.
Tuesday, January 17, 2017
Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here). The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:
This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years. For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....
At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals. A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine. At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment. Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.
We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.
The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:
The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.
In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.
If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.
From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime. Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....
Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.
The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).
NY Times editorial rightly notes Prez Obama's clemency failings, especially with respect to pardons
This New York Times editorial, headlined "Mr. Obama, Pick Up Your Pardon Pen," properly laments the fact that Prez Obama has used his clemency power much more for commutations than for pardons, and it even takes some astute shots at the Prez for how his has gone about his commutations. Here is some of the criticism:
For more than four decades, Sala Udin lived under the shadow of a federal firearms conviction, the result of a search by the Kentucky police who found an unloaded shotgun in the trunk of his car in 1970.
Mr. Udin, who had been a Freedom Rider during the civil rights era, carried the gun for protection as he drove around the South. After eight months in prison, he lived an exemplary life, serving on the Pittsburgh City Council and playing a role in the city’s redevelopment. But when President Obama visited Pittsburgh in 2009, Mr. Udin wasn’t allowed to meet him: His criminal record prevented such an encounter.
Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office. It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re-enter society.
The White House has been trumpeting Mr. Obama’s use of his clemency power in the last two years, especially his nearly 1,200 commutations of prison sentences, more than the last several presidents combined. Most of these inmates were serving outrageously long terms, including life without parole, for nonviolent drug crimes. Commuting those sentences is meaningful progress, even if Mr. Obama could and should have started much earlier and released thousands more deserving people.
But when it comes to the other type of executive clemency — pardons — Mr. Obama hasn’t been an improvement over his predecessors. Unlike a commutation, which shortens or ends a prison sentence, a pardon is an act of forgiveness granted to someone who has completed a sentence. Pardons remove the stigma of conviction and restore the right to hold office, to vote, to obtain certain business licenses and to own a gun — all activities that can be denied those with criminal records.
The reluctance to grant pardons makes even less sense than a reluctance to give out commutations, since the sentences have already been served and there is no public safety concern. In both cases, the trouble rests with the people acting as the gatekeepers of mercy. The clemency process is run out of the Justice Department, where career prosecutors have little interest in reversing the work of their colleagues. It’s a recipe for intransigence, dysfunction and injustice on a mass scale....
There is a better way. In both liberal and conservative states, from Delaware and Connecticut to Nebraska and Georgia, the pardon process is more predictable and transparent. Some states require independent boards to make pardon recommendations to the governor; others hold regularly scheduled public hearings. All take the executive’s job of granting mercy seriously, which makes those grants both more fair and more common.
On Mr. Obama’s first Inauguration Day, in 2009, President George W. Bush gave him a good piece of advice: Pick a pardon policy and stick with it. Perhaps President-elect Donald Trump will learn from Mr. Obama’s failure to heed that wisdom.
Though this is an effective editorial, it might also have noted that federal law lacks any mechanism for getting a criminal record sealed or expunged and thus a Presidential pardon is the only method for a former federal offenders to get his record cleaned. This reality makes pardon practice all that much more important at the federal level, though it also should at some point prompt federal lawmakers to consider creating a needed statutory mechanism for record sealing or expungement as exists in so many states.
Monday, January 16, 2017
SCOTUS to confront implication for immigration statute of Johnson vagueness ruling
On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States. Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:
The U.S government targets noncitizens with criminal convictions for removal from the United States. These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history. On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal. In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal. Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.
A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … 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.”
In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.” The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”
Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992. Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States. Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed. The Board of Immigration Appeals agreed. In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.
After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency
Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency." I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit. Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:
Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.
“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.
As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.
Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.
Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...
At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.
About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.
When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”
Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit. Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.
“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history. You have to look at their conduct [in prison].”
Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years. At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions. She did that, and included several hundred petitions received through Sept. 15, after her cutoff date. She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”
I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.
Questioning a new term of supervised release after Prez Obama commutes a life sentence
This new article at The Fix highlights an interesting legal issue that has arisen in the wake of Prez Obama's decision to commute a drug offenders life sentence. Here are the particulars (with a few edits for keeping the legal terminology accurate):
When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life. Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee. On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018. He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose [supervised release], which in effect is another sentence.
“I was arrested in September 2007. My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five. They gave me life from enhancing me because of my priors.”
The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases. But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine. That’s why Obama pardoned him, because he was serving a disproportionate sentence....
But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to [supervised release] at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court — but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules....
For some clarity on the matter, The Fix reached out to some clemency experts — P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton — to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation. “The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix.... “Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison. My understanding is that this was a conditional pardon.”
If 10 years [supervised release] was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.
“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”...
Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.
“I objected,” Walden says. “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me. The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing. I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney. This is an interesting situation. Many people seem interested in the outcome. It is illegal and should be brought to the public's attention.”
Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without [supervised release] hovering over his head.
“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance. I would certainly not want to mess up someone down the line from getting the same relief as me.”
The legal issue here strikes me as an interesting mix of functionalities and technicalities. There was, of course, no functional reason for the sentencing judge to impose any term of supervised release at initial sentencing when imposing an LWOP sentence. But now that a commutation has resulted in an offender getting released after serving less than a decade, there now is a functional reason for imposing at least some SR term (which would have been a required part of the sentence had the defendant been sentenced to less than LWOP). But, technically, I think there is a forceful argument that if the Prez did not include the addition of an SR term in his clemency grant, then it is improper for the original sentencing judge to now add that on to the defendant's original (now commuted) sentence.
Notably, the White House clemency page reports that the "1,176 men and women" who have had their prison sentences commuted by Prez Obama includes "395 individuals who were serving life sentences." Thus there are literally hundreds of individuals who could have this kind of post-commutation issue arise (although I doubt all sentencing courts are going to be as proactive as the court that added 10 years of supervised release to Walden's sentence).
Sunday, January 15, 2017
Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence
As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:
A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.
Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.
During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.
The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.
The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):
This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation. We have not previously considered this question, but other courts have.
While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status. Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.
Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations. For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation. Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant. Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history. At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability. And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.
Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status. When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.
Friday, January 13, 2017
Supreme Court grants cert on four new criminal cases and a dozen others
After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases. I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:
WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.
MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.
McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.
UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.
Thursday, January 12, 2017
New report spotlights five Florida counties often condemning to death murderers have mental impairments
A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments." Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state. This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties," and here are excerpts from the introduction:
The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.
This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.
Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”
New Jersey Supreme Court addresses Miller's application to all serious juve sentencings
As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:
The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."
And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.
The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.
Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.
"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.
Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."
But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."
"Youth matters under the constitution," Rabner wrote.
The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.
January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Wednesday, January 11, 2017
"Is Qualified Immunity Unlawful?"
The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:
The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.
Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.
But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.
Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.
Tuesday, January 10, 2017
Charleston Church shooter Dylann Roof sentencing to death by federal jury
As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:
The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.
It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.
Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”
After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.
Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."
After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.
Interesting new report on impact of Prop 47 on drug arrests in California
Via email I received notice of this notable new research report, titled "Declinining Drug Enforcement After Proposition 47," coming from the Center on Juvenile and Criminal Justice and the Drug Policy Alliance. This executive summary provides the report's highlights:
In November 2014, California took a significant step toward reforming mass criminalization and over-incarceration by passing Proposition 47, a law that changed certain low-level crimes from potential felonies to misdemeanors, prioritizing drug treatment over punishment. Prop 47 reclassified three drug possession offenses (possession of a narcotic, concentrated cannabis, or a non-narcotic) and reinvested state savings in direct services. In 2015, the first full year after Prop 47, felony drug arrests fell by over 92,000 while misdemeanor drug arrests increased by only 70,000. Taken together, these shifts produced a 10 percent decline in total drug arrests.
In response to Prop 47’s reclassification statute, some law enforcement departments began redirecting drug enforcement resources to community policing or the enforcement of other, more serious, offenses. Critics of the policy, however, claim that it limits police authority and constrains the effectiveness of drug control, a contention that has led some law enforcement agencies to deemphasize the enforcement of Proposition 47-related offenses.
This report seeks to understand how enforcement and prosecution of drug possession offenses have changed after Prop 47 by analyzing arrests and citations made by Los Angeles and San Diego law enforcement, and charges filed by county prosecutors. Some of the findings include:
• Prop 47 reduced inconsistencies in the classification of drug possession offenses as felonies or misdemeanors. Prior to Prop 47, qualifying drug possession offenses could be prosecuted as misdemeanors, felonies, or “wobblers.” After the passage of Prop 47, these offenses are filed as misdemeanors, eliminating prosecutorial discretion and the presence of “justice-by-geography,” which can disproportionately impact low income communities and communities of color.
• Drug arrests and citations were increasing in the years immediately preceding Prop 47. From 2010-2014, arrests and citations for Prop 47 drug possession offenses increased in 72 percent of law enforcement agencies in Los Angeles and San Diego counties. Between 2014-2015, 58 percent of agencies reported declines.
• Arrests and citations declined after Prop 47, but varied by county, city, and substance. For example, while both San Diego and Los Angeles counties experienced declines in arrests and citations, Los Angles reported a decrease of 45 percent while San Diego reported 7 percent decline.
Monday, January 09, 2017
"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans. Here is the abstract:
Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes. This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States. The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.
January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)
SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout
The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia. But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:
This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....
This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. 814 F.3d, at 1077. This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.
Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.
Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?
The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago. This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:
The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.
Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.
Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role. In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.
Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer. He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm. But it may be months before prosecutors reveal what lies in Santiago's future.
"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate. Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago. The Florida Supreme Court overturned a rewritten version in October....
Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency. They returned it to him about a month later after a medical evaluation found he was not mentally ill....
Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.
The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death. Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.
Sunday, January 08, 2017
SCOTUS back in action with booking fee process as first notable criminal case of 2017
The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans. But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado. The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:
Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions. And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual. Colorado does not. Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover. The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....
Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument. The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado. But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse. After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.” If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.
"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"
The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:
In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive. Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range. Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.
This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders. Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court. Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.
This Note proceeds in four parts. Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence. Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults. Finally, Part IV recommends statutory changes and amendments to the Guidelines.
Friday, January 06, 2017
Seventh Circuit panel affirms above-guideline drug sentence ... with Judge Posner suggesting USSC involvement would be better than a sentencing "hunch"
An otherwise little and unremarkable sentencing appeal became blog-worthy because of Judge Posner's provocative opinion for the court in US v. Gibbs, No. 16-1747 (7th Cir. Jan. 6, 2017) (available here). Here is some background and the blog-notable aspect of Judge Posner's opinion:
The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence ... and that was the sentence that the district judge imposed....
The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.” He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.”....
Neither the government, in recommending a 216‐month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range. Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216‐month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory ... the sentence must be affirmed.
Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18‐year sentence is very long) — on something other than a hunch. The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range. In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range. The Commission might for example take a close look at the government’s suggested 216‐month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range. The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range — or might explain why it was not. Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.
The Judge Posner's opinion nominally represents the opinion of the Seventh Circuit, the other two judges on the panel (Judges Kanne and Sykes) wrote separate concurring opinions (and Judge Sykes opinion is only concurring in the judgment). Judge Kanne does join Judge Posner's opinion, but his separate opinion captures some aspects of my reactions to what Judge Posner suggests:
I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.
An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions
The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):
Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus. They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....
That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.
Here are the six areas of reform — and the reasons they have a viable path to becoming law.
First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....
Second, we must protect every citizens’ Sixth Amendment rights. When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court. It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....
Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....
Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....
Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives. Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs. Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so. Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....
Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.” The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....
Any one of these reforms would improve our federal justice system — and have a profound effect on our society. Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance. That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms. Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.
If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives. That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.
As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.
Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity. Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.
January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)
Wednesday, January 04, 2017
Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases
This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers. The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:
A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.
And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.
But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.
According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”
The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.
Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....
In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.
Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.
Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....
“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”
Florida Supreme Court adds to the mess that is the current Florida death penalty limbo
These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:
Here are the basics from the first of these linked reports:
Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.
The reason: A typo.
In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.
Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.
Makes me think of the famous words of one of my favorite philosophers.
"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"
The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen. Here are excerpts:
Dylann Roof has a constitutional right not to try to spare his own life....
In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself. The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates. Roof has consistently shown he understands the nature of the proceedings against him. The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology. He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."
Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty. Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.
For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.
It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."
Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.
Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.
UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post. Here are this piece's final two paragraphs:
The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.
In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.
"Texas sues feds over confiscated execution drugs"
The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:
For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.
Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.
In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.
In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.
As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....
"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.
Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.
Tuesday, January 03, 2017
Death penalty in Pennsylvania so dysfunctional that it cannot complete long-overdue report on its dysfunction
Unless and until the newly enacted reform ballot initiative magically fixes a whole bunch of problems, California will still be able to lay claim to having the most dysfunctional death penalty system in the United States. But this new local article, headlined "Three years late, seminal death penalty report still unfinished," highlights why Pennsylvania come in a pretty close second. Here are excerpts:
Already three years behind schedule, a committee studying flaws in Pennsylvania's death penalty is still a long way away from issuing its much-anticipated report. The stakes for the Senate's Advisory Committee on Capital Punishment are high, ever since Gov. Tom Wolf vowed nearly two years ago to block executions until its recommendations are issued and acted upon.
But elevated from obscurity by Wolf's moratorium, the all-volunteer committee has no individual budget and no dedicated staff members, and has consistently seen its time line pushed further and further into the future, much to the unhappiness of death-penalty backers. The new year will see "meaningful, significant progress" in the panel's work, said Steve Hoenstine, a spokesman for state Sen. Daylin Leach, D-Montgomery, a point man in the effort. But Hoenstine wouldn't commit to the report being completed this year, given the scope of the questions being tackled. "The goal isn't to produce something as quickly as possible that may or may not be correct," said Hoenstine, whose boss is a staunch opponent of capital punishment. "Studying bias in Pennsylvania's death penalty, it is just an enormous undertaking."
Wolf, a Democrat, announced his moratorium in February 2015, when he called the death penalty "error prone, expensive and anything but infallible." He has since issued reprieves to five inmates facing the death chamber, including Lehigh Valley mass murderer Michael Eric Ballard, who stabbed to death four people in a Northampton home in 2010 while on parole for a prior killing. Even without issuing findings, the advisory committee has proven controversial to death-penalty supporters, who charge the makeup of its 27 members is weighted against capital punishment.
Given the moratorium, it is no surprise that the report continues to be delayed, said Northampton County District Attorney John Morganelli, a Democrat who is a vocal death penalty backer. With executions halted, there's no incentive for the committee to finish its work, he said. "I don't think it is ever going to come," Morganelli said. "Why would they release it?"
The committee, approved by the Senate in 2011, is looking into 17 aspects of capital punishment, including its cost, its impact on public safety, its potential for racial or economic bias, and whether there are sufficient safeguards against the innocent being executed. The report originally was due in December 2013. The panel includes judges, defense attorneys, prosecutors, clergy members, college professors, a relative of a murder victim, victims advocates, officials from the American Civil Liberties Union and two other nonprofits, and police and corrections representatives.
Hoenstine said delays have nothing to do with the moratorium. He noted the committee was established while Wolf's predecessor, Tom Corbett, a Republican former prosecutor, was governor. "This is something that happened long before Gov. Wolf took office and, therefore, long before this moratorium took place," Hoenstine said. "It is a bipartisan search for the truth. It is nothing but that."
Like much of the nation, the state has contentiously debated capital punishment, under which scores of Pennsylvania inmates have seen their sentences reversed. None have been executed here against their will since John F. Kennedy was president.
The committee's work is spearheaded by the Joint State Government Commission, a research wing of the Legislature, with assistance from a state commission on fairness in the courts and by researchers from Penn State University. Glenn Pasewicz, executive director of the Joint State Government Commission, has said research has proven laborious, given the need for data collectors to go from county courthouse to county courthouse gathering statistics about homicide cases, when the death penalty is sought and when it is imposed. According to Hoenstine, that work is ongoing. "We want it to be data driven and based on clean data, reliable data," Hoenstine said. "That's a time-consuming process."...
Pennsylvania has 175 prisoners on death row, but it rarely performs an execution, going back well before Wolf's moratorium. Just three men have been put to death in the modern era of capital punishment, and all were volunteers who abandoned legal challenges to their sentences. The last was Philadelphia "house of horrors" murderer Gary Heidnik, who was lethally injected in 1999.
Monday, January 02, 2017
Great report on Texas justice reviewing why Lone Star State is a "leader in criminal justice reform"
Via this local press article, headlined "Report: Don't cut funding for inmate rehabilitation," I came across this terrific new report from the Texas House of Representatives Committee on Corrections. These excerpts from the press piece provides a partial summary of the report:
When lawmakers return to Austin in 10 days to begin grappling with what appears will be a bare-bones state budget, a legislative panel that oversees the Texas prison system is urging them to resist cutting funding for programs that help former inmates and probationers adjust to free-world life.
“As (the prison system) cannot cut back on the security and public safety components of their mission, it is likely that many of the programs that are making a real difference will face the axe,” says a report released over the holidays by the Texas House Corrections Committee.
“The state that leads the nation in executions also leads the nation in providing alternatives to incarceration,” the report adds. “An American state that used to be infamous for its ‘lock 'em up and throw away the key’ approach to crime is now providing an unlikely inspiration to other states and countries.”
The 68-page report that the panel will likely use as a blueprint for legislative initiatives once 2017 session begins Jan. 10 makes several recommendations, include lowering the fees that probationers must pay, opting out of a federal program that requires the suspension of a driver’s license for anyone convicted of possessing even a small amount of marijuana and sealing the criminal records for qualifying former inmates who remain out of trouble for a specified period of time.
The report comes some 20 years after Texas leaders frustrated by rising crime rates completed a massive prison building program that tripled the system’s capacity. It even uses a phrase once thought to be politically toxic is describing the state’s approach for helping lawbreakers return to society. “Texas is a leader by being ‘softer on crime,’ although we prefer the word ‘smarter,’” it says. “It's something to think about as we head into the next legislative session.”....
The committee report says probation revocations, while still relatively high, have been steadily dropping for about a decade as lawmakers began devoting more resources to programs aimed at reducing inmates’ and probationers’ substance addictions and arming them with job skills. During that period, the report says, Texas’ crime rate has dropped about 20 percent while recidivism rates declined from 28 percent to 21 percent.
During a hearing in February, Corrections Committee Chairman Jim Murphy said it’s important that inmates and probationers believe that the state is committed to programs aimed at minimizing the chance that they’ll be back behind bars. “I am thinking about the dynamic of someone being in the system, wanting to improve themselves, and being told ‘you're not a priority,’” said Murphy, a Houston Republican. “If we're trying to get someone not to recidivate, that's exactly opposite of what I think the intended result would be.”
According to the report, which Murphy signed in early December before its release last week, the fees associated with being on probation can be insurmountable for offenders struggling to find employment. Probationers are charged upward of $60 a month to help cover the cost of supervision. Many are required to take and pay for classes aimed at fighting addiction or controlling anger and violence. Probationers who lose driving privileges can be required to take a class to have the license reinstated and pay up to $325 before being allowed to drive, even if it’s just to and from work.
The list goes on. “There are fees for records management, for juries, for judicial support, for court security, and for indigent defense,” the committee’s report says. “Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it.” Often, the report continues, judges who impose the costs have little information regarding an offender’s ability to pay them. “In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?” the report asks.
The committee’s report points out that in April 2016, Pennsylvania enacted legislation, allowing criminal records of qualified nonviolent offenders to be sealed for offenders who remain free of legal trouble for 10 years. The records of those charged but not convicted of a crime can be sealed after 60 days.
As this partial summary should highlight, any and everyone interested in state or national criminal justice reform ought to have this across this important new Texas government report high on their New Year's reading list.
January 2, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)
Understanding why Dylann Roof will not present penalty phase evidence at his capital trial
Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory. Here is how the lengthy piece begins:
Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.
“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”
Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.
“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.
The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.
Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.
Sunday, January 01, 2017
Chief Justice extols the work of federal district judges in traditional year-end report
The Chief Justice of the United States John Roberts decided to use his 2016 Year-End Report on the Federal Judiciary, which is available at this link, to praise the work of federal district judges. The report starts with a lovely little history lesson, and it includes these passages that should especially engage criminal justice fans:
The character of a district judge is most starkly evident in a criminal trial. Most criminal charges are resolved through the plea bargaining process, but those cases that go to trial place especially high demands on the court. The judge must move the process forward in accordance with the Speedy Trial Act, consistent with the defendant’s right to constitutionally adequate representation. He must promptly decide motions and make evidentiary rulings as the trial proceeds, typically without the luxury of calm consideration and research in the quiet of chambers. The judge must carefully guide the jury on the elements of the offense and the prosecution’s burden of proof. If the trial results in conviction, the judge faces the somber task of sentencing.
Most district judges agree that sentencing is their most difficult duty. The judge must confront the offender, face-to-face, and take just account of human failing. The judge must consider the perspectives of the prosecutor, the defendant, and the victim, and impose a penalty that, by design and necessity, will alter the direction of the defendant’s life. In determining appropriate punishment, his discretion is confined by legislative determinations, and guided by carefully considered sentencing guidelines and a presentence report. At the end of the day, the sentence nonetheless critically reflects the judge’s wisdom, experience, and educated grasp of what he observed firsthand in the courtroom. In delivering the sentence, the judge speaks as the voice of the community.
In part because I know and respect so many federal district judges, I am so very pleased to see the Chief Justice deliver this kind of justified professional love letter. In addition, because I have long been a strong and dogged advocate for SCOTUS Justices having experience as a trial judge, I cannot help but "read between the lines" here and see a kind of chiefly endorsement for the next SCOTUS justice having district court experience.
Saturday, December 31, 2016
Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game
As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs." Here is more about the ruling and its context:
In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.
Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....
Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....
In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.
The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.
Friday, December 30, 2016
Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns
A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here). Here is how the opinion starts:
Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions. The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct. For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.
The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."
UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.
ANOTHER UPDATE on January 9, 2017: I was again alerted by a helpful reader that, as evidenced here, US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever. Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.
Thursday, December 29, 2016
Will Ohio get back in the business of state killing in 2017?
The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info." Here are excerpts from the AP piece:
A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.
Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.
At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.
For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.
What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017. That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.
Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....
The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.
Wednesday, December 28, 2016
Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:
But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.
Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."
Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.
The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.
Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.
Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.
Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.
Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....
Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."
Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case
Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters. The piece is headlined "107 former Justice officials think this case was handled unjustly. DOJ must act." Here are excerpts:
“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice. Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.
Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years. Worse, his sentence was based on perjured testimony and prosecutorial misconduct.
If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons. In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served. The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.
Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs. Moreover, all 107 of us are working on this pro bono. Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.
The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa. In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers. The raid resulted in the company declaring bankruptcy. Rubashkin was arrested a short time later and charged with bank fraud. And this is where things went terribly wrong. The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....
I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case. Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law. If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.
Sunday, December 25, 2016
Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts
Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours." I recommend the full piece and here are some excerpts:
President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”
The president certainly deserves credit for making clemency a priority before leaving office.... Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”
With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....
[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.
Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”...
On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.
As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”
One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....
Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....
Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”
The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.
But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.
I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.
The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.
Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.
Saturday, December 24, 2016
Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense
As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:
Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down. He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills. He left the computer.
As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day. He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.
Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.
But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice." The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."
The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.
Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.
But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.
Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.
"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."
The full majority ruling in Louisiana v. Johnson is available at this link. Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision:
Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive. Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.
We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract." Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged. Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.
Friday, December 23, 2016
Seeing the state of criminal justice reform through the lens of state reforms
Though the federal criminal justice system always gets lots of attention, the reality is that most of the real criminal justice "action" takes place at the state (and local) level. Consequently, this Medium commentary by Jenna Moll, Deputy Director, U.S. Justice Action Network, titled "2016: States Home to Success on Effective Justice Reforms," serves as a useful year-end review of the state of our criminal justice reform union. Here is how the lengthy piece gets started, its middle headings, and its ending:
In 2016, the U.S. Justice Action Network made an aggressive push in 12 states to safely reform sentencing laws, reduce mandatory minimums, expand effective treatment and rehabilitation options, and improve the reentry process for returning citizens in our justice system.
With more than 1.3 million of the Americans currently behind bars in state facilities, our state work is crucial in order to actually impact the country’s incarceration rate. And every time we add another state, red or blue, to our list of successes, we make it harder for Congress to ignore the bipartisan calls for action.
The reason for our success is no secret but it is unique. We have used our right-left coalition and national allies to bring together law enforcement officials, faith-based community leaders, and stakeholders from all walks of life who recognize the pressing need to make changes.
We’ve had great successes throughout the year — and we haven’t taken our foot off the gas yet. Just last week in Ohio, the legislature passed fixes to the civil asset forfeiture system in the state that better protect due process and property rights for Ohio residents. A victory, right before the buzzer in 2016. Here’s where we and our allies made the most progress this year:
Removing Barriers to Employment...
Changing Laws, Changing Lives...
Refocusing Our Justice System ...
Bringing State Successes to D.C....
Looking ahead, we’re already focused on long-term success, educating lawmakers and interest groups in states and pressing them to coalesce around robust legislative recommendations that can make the change voters seek. We’re involved in this process across the country — in Illinois with the bipartisan State Commission on Criminal Justice and Sentencing Reform, in Louisiana and Pennsylvania with their Justice Reinvestment Initiatives, and in Ohio through the Criminal Justice Recodification Committee.
In 2016, a clear roadmap for passing successful reforms at the state level was created, strengthened, and expanded. We know that by harnessing the power of bipartisan, state-based coalitions and engaging law enforcement, the business community and faith leaders, we can set the agenda for justice reform and gain a consensus that few other issues can achieve in the current political climate. That’s why in 2017, our organization is continuing efforts in almost a dozen states and expanding our efforts on the state level to include Tennessee, Texas, and Wyoming.
At times, progress on the legislative level seems to move at a snail’s pace, in light of the overwhelming levels of bipartisan support from voters. But it’s clear that 2016 was a successful year for the justice reform movement at the state level. Across eleven states, we’ve seen thirty-six bills that we and our coalitions championed signed into law by Governors from the right and the left, and we are incredibly proud of this work. And even more proud of those allies with whom we’ve had the honor of standing side-by-side.
I call that progress — and I look forward to even more in 2017.
Thursday, December 22, 2016
Florida Supreme Court brings back to life some older death sentences
As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences. Here are the basics:
Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.
The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.
The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.
Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws. Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.
The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:
After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.
There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.
UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:
After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley. The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.
Wednesday, December 21, 2016
DPIC releases year-end report highlighting "historic declines" in use of the death penalty in 2016
This press release from the Death Penalty Information Center, titled "Death Sentences, Executions Drop to Historic Lows in 2016," provides a summary of the DPIC's 2016 year-end report on the administration of the death penalty in the United States. Here is the text of the press release:
Death sentences, executions, and public support for capital punishment all continued historic declines in 2016. American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972. The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.
“America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report. “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”
For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2). Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.
This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions. Only five states conducted executions this year, the fewest number of states to do so since 1983. Two states -- Georgia, which had the most executions (9), and Texas, which had the second highest number (7) -- accounted for 80 percent of all executions in the U.S. Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.
State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed. The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states. And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.
America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment. At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices. In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.
DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning. This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because, as I have said before, I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
"The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century"
The title of this post is the title of this notable new paper authored by Christopher Slobogin and now available via SSRN. Here is the abstract:
This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly. Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary. A second goal is to promote reliable case outcomes. This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings. The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system. The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.
Detailing how global financier George Soros has been funding efforts to take out local prosecutors
I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:
Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.
Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.
Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”
The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.
Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:
Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.
David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”
Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.
The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...
Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....
Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.
As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.
The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”
In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.
“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...
Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.
Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”
She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said
Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.
Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”
Tuesday, December 20, 2016
New report spotlights that majority of condemned Oregon murderers have mental impairments
In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:
Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.” More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.” By all functional measures, Oregonians have abandoned the death penalty.
And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences? This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.
Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....
Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....
Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....
[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome.
"Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway"
The title of this post is the title of this new book by my FSR colleague and LawProf Michael O’Hear. For sentencing fans, this new book would surely make a great stocking stuffer, as this text from the publisher's website suggests:
The dramatic increase in U.S. prison populations since the 1970s is often blamed on the mandatory sentencing required by “three strikes” laws and other punitive crime bills. Michael M. O’Hear shows that the blame is actually not so easy to assign. His meticulous analysis of incarceration in Wisconsin — a state where judges have considerable discretion in sentencing — shows that the prison population has ballooned anyway, increasing nearly tenfold over forty years.
O’Hear tracks the effects of sentencing laws and politics in Wisconsin from the eve of the imprisonment boom in 1970 up to the 2010s. Drawing on archival research, original public-opinion polling, and interviews with dozens of key policymakers, he reveals important dimensions that have been missed by others. He draws out lessons from the Wisconsin experience for the U.S. as a whole, where mass incarceration has cost taxpayers billions of dollars and caused untold misery to millions of inmates and their families.
“Serious students of modern sentencing reforms — as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration — must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”
—Douglas Berman, author of the Sentencing Law and Policy Blog
“Fascinating political and social history. O’Hear puts national criminal justice trends into a single-state frame, providing much sharper insights than often come from trying to look at the entirety of this very big country. This is first-rate work.”
—Frank O. Bowman III, University of Missouri School of Law
Monday, December 19, 2016
"The Structure of Federal Public Defense: A Call for Independence"
The title of this post is the title of this notable new article now available via SSRN authored by David Patton. Here is the abstract:
Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services.
The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.” In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.
Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner
This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:
A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.
The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.
“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously. Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.
The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:
The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline. First, the sentence was within the parameters set by law and was therefore within the judge’s discretion. Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant. Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias. The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both. Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification.
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Sunday, December 18, 2016
Anyone eager to predict how many last-month clemencies Prez Obama will grant?
The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:
Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....
Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.
These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...
Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.
In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.
Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...
Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.
But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.
I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017. This is a nothing but a blind guess and I have absolutely no insider knowledge here. What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
- Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
UPDATE: In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.) Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.
Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.' And the chart the WSJ used (and you reprinted) is wrong. Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."
"Duties of Capital Trial Counsel Under the California 'Death Penalty Reform and Savings Act of 2016'"
The title of this post is the title of this timely and interesting new article authored by Robert Sanger now available via SSRN. Here is the abstract:
Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016. The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.
Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus. The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death. These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court. In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.
Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds. Some of the objections will be systemic and others will be case specific. There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process. The Act is inoperable because it is not self-executing and because it is unfunded. The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause. The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.
Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.” Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work. Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.
Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution. For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act. Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.