Friday, March 14, 2014

"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"

The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms.  Here are excerpts:

Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command....

Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....

The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”

The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.

But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”

Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...

Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”

Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”

In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”

Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:

March 14, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, March 12, 2014

Ohio Supreme Court explains how Miller is to be applied in discretionary juve LWOP system

The Ohio Supreme Court this morning handed down a lengthy split decision in Ohio v. Long, No. . 2014-Ohio-849 (March 12, 2014) (available here), which explain how the Eighth Amendment rules in Miller, which only formally declare conconstitutional a mandatory juve LWOP sentencing scheme, are to be applied in a system that already gave sentencing judges discretion in cases in which juve killers were made eligible for an LWOP sentence. Here is the start and some additional excerpts from the majority opinion: 

In this case, we are asked whether a trial court violates the Eighth Amendment by imposing a sentence of life imprisonment without parole for an aggravated murder committed by a juvenile.  We hold that a court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)....

As applied to a juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller, because the sentence of life without parole is discretionary.  Nor is our criminal procedure flawed under Graham and Miller by failing to take into account that a defendant is a youthful offender.  Nevertheless, for clarification we expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile.  But this does not mean that a juvenile may be sentenced only to the minimum term.  The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate.  Yet because a life-without-parole sentence implies that rehabilitation is impossible, when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record....

Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole.  For juveniles, like Long, a sentence of life without parole is the equivalent of a death penalty.  Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407.  As such, it is not to be imposed lightly, for as the juvenile matures into adulthood and may become amenable to rehabilitation, the sentence completely forecloses that possibility...

The United States Supreme Court has indicated in Roper, Graham, and Miller that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729.  Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile.  Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles.  Miller, ___ U.S. ___, 132 S.Ct. at 2469, 183 L.Ed.2d 407.  In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.

March 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Judges as Framers of Plea Bargaining"

The title of this post is the title of this intriguing new paper by Daniel S. McConkie Jr. now available via SSRN. Here is the abstract:

The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight.  This presents significant issues concerning transparency, fairness, and effective sentencing.  Federal prosecutors strongly influence sentences by the charges they select.  The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure.  Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence.  The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials.  What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.

This article explores a proposed procedure that would do just that.  Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings.  As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties.  The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial.  This increased judicial participation through a regularized, advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and likely sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions.  Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty.  In short, plea bargaining is here to stay, but criminal justice would be greatly improved by bringing more of the plea bargaining process back into the courtroom where the judge could help frame the key issues for the parties.

March 12, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Making a case for "capital punishment [as] one of law enforcement’s most valuable tools"

U.S. Rep. Dave Reichert, who previously served as the lead detective of the Green River Task Force, has this new commentary about the death penalty running under the headline "The death penalty is an important tool of law enforcement." Here are excerpts:

The Green River Task Force ... collected far too many bodies — all young women full of potential who became ensnared in a sordid way of life through a variety of circumstances. Victims of their situations, they also became victims of the Green River killer.

These memories came rushing back to me because of Gov. Jay Inslee’s recent decision to unilaterally stop enforcing the death penalty while he is in office.  He says he wants to start a “conversation” about capital punishment, so let’s start with some facts.

In Washington state, the death penalty is reserved for a select group of people. In legal terms, these criminals have committed murder in the first degree under aggravating circumstances.  Simply put, these people are the worst of the worst.  Currently there are nine men on Washington’s death row who have committed such atrocities.  Even the governor has admitted he believes all nine are guilty of their crimes.

Gary Ridgway is the monster we arrested as the Green River killer in 2001. He would eventually plead guilty to 49 counts of murder although he has claimed that he raped and murdered 20 to 30 more young women.

There was only one way Ridgway would plead guilty: if the threat of capital punishment, one of law enforcement’s most valuable tools, were taken off the table.  Ridgway is a coward. To him the victims’ lives meant nothing, but his own life was far too precious to him to consider losing, so he sent his lawyers to bargain for his life.

In 2003, we convinced Ridgway not only to plead guilty but to spend six months shedding light on the fate and whereabouts of other young women he killed.  We were able to find answers for families who had agonized for years over the whereabouts of their loved ones. I witnessed how those answers could allow families to grieve, say goodbye and begin to rebuild their lives, always remembering their lost loved one.

Every tool in the arsenal of a law-enforcement officer is important — from the sidearms we carry to the law itself. Without these tools, we cannot keep our communities safe or ensure justice is carried out. That is why I believe the death penalty is critical to public safety.

When Gov. Inslee announced his moratorium on capital punishment, he reduced the effectiveness of law enforcement in Washington state.  The moratorium’s tangible effects are minimal, considering its infrequent use.  Since the voters reinstated capital punishment here in 1975, five men have been put to death.  But for every cop and prosecutor who needs to put away a violent murderer, there is one fewer weapon with which to fight for justice.  More cases will go to trial and monsters like Ridgway could hold on to their secrets forever or even walk free.

If the governor wants to start a conversation on the death penalty, the people of Washington state must be included.  He took an oath to uphold our law, and he should not violate that oath because he disagrees with the law.  If he wishes to overturn it, then he should propose legislation and take the case to the voters.

The people of Washington put capital punishment on the books and they should be the ones to take it away if they choose.  In the meantime, the governor should be engaging law enforcement and other groups about this issue.  If he doesn’t, it will be the people of Washington State who pay.

Recent related posts:

March 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, March 11, 2014

Ohio prosecutor, upon learning of mental health issues, helps undo 5-year prison term for voter fraud

This local article from Cincinnati, which is headlined "Poll worker who voted illegally freed from prison," reports on a remarkable development in a remarkable voting fraud case thanks to the work of a new defense attorney and a thoughtful local prosecutor. Here are the details:

The former Hamilton County Board of Elections worker convicted last year of illegal voting and sent to prison for five years was released Tuesday because of mental health issues. Melowese Richardson, 58, was too ashamed to mention her bipolar disorder last year and forbid her attorney, Bill Gallagher, from including it as part of her attempt to elude prison. But after she was convicted last spring of four counts of illegal voting, her new attorney appealed the case and raised the issue.

When he sentenced Richardson last year, Common Pleas Court Judge Robert Ruehlman made stinging comments about Richardson, her criminal history, her violation of elections board rules and Ohio laws and her selfishness. "I was not aware of her mental health issues" at that time, the judge said Tuesday, because she refused to allow her attorney to mention it.

After her new attorney, David Singleton, took her case on appeal, he presented her mental health history to Prosecutor Joe Deters. He agreed her bipolar disorder was so severe that she shouldn't be imprisoned. "We went to Joe Deters with those records and Joe immediately recognized that it was inappropriate to have her locked up for five years when the (judge) didn't know she had mental health issues," Singleton said....

In the Tuesday hearing that lasted just minutes, Richardson said nothing except to briefly answer questions, saying she was aware of what was happening and approved. The judge dismissed her May 2013 conviction and five-year prison sentence and allowed her to plead no contest to four counts of illegal voting, the same charges on which she was convicted. That allowed the judge to re-sentence her, placing her on five years of probation and releasing her from the Hamilton County Justice Center after eight months in prison.

Richardson's case drew national headlines last year because of the allegations of illegal voting across the country – and because she was a Hamilton County poll worker from 1998 until her arrest. She was convicted of voting twice in the 2012 election and voting three times – in 2008, 2011 and 2012 – for her sister, Montez Richardson, who has been in a coma since 2003.

Richardson was previously convicted of threatening to kill a witness in a criminal case against her brother, of stealing, of drunken driving and of beating someone in a bar fight.

Persons familiar with Ohio policy and politics know that Hamilton County is a fair conservative part of the state and that Hamilton County Prosecutor Joe Deters is widely know for having put a significant number of murderers on the state's death row. But as this case usefully highlights, state and local prosecutors are often able and often willing to reconsider or resist the use of lengthy prison terms when defense lawyers are able to effectively highlight why such a sentence may be unjust and/or ineffective.

March 11, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What To Do About It"

The title of this post is the title of this notable new paper by W.C. Bunting now available via SSRN. Here is the abstract:

This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.”  While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based.

A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population.  A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population.  Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy.

The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.

March 11, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Might SCOTUS soon (ever?) consider whether its Apprendi jurisprudence should apply to criminal forfeitures?

The question in the title of this post is my response to the brief discussion of a constitutional claim appearing in yesterday's Ninth Circuit decision in US v. Wilkes, No. 11-50152 (9th Cir. March 10, 2014) (available here).  Here is why:

Wilkes argues that determination of the amount of his criminal forfeiture by the district judge, as opposed to a jury, violated his Sixth Amendment right to a jury trial. Wilkes argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013), require that the jury find facts justifying an increase in either end of the range of the prescribed penalty. Wilkes further argues that Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), applied Apprendi and, by extension, Alleyne, to monetary penalties — which he contends includes criminal forfeiture.

Wilkes’s argument is directly contradicted by binding Supreme Court precedent. In Libretti v. United States, 516 U.S. 29, 48–49 (1995), the Court expressly held that there is no Sixth Amendment right to a jury verdict in a criminal forfeiture proceeding. The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997).  Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). In compliance with the Supreme Court’s instructions, we reject the argument that Southern Union implicitly overruled Libretti.

Notably, and I think sensibly, this Ninth Circuit panel does not try to explain why Libretti is still sound and good law in light of Apprendi, Southern Union and Alleyne. Instead, it says it is not its role/job to reverse a pre-Apprendi ruling based on Apprendi; that is what SCOTUS has to do. But since SCOTUS has reversed at least two significant pre-Apprendi rulings based on Apprendi, defendants might be wise to keep raising and preserving this claim until the Supreme Court gives it another modern review.

March 11, 2014 in Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 10, 2014

"Little-Known Health Act Fact: Prison Inmates Are Signing Up"

The title of this post is the headline of this front-page New York Times article.  Here is how it gets started and additional excerpts:

In a little-noticed outcome of President Obama’s Affordable Care Act, jails and prisons around the country are beginning to sign up inmates for health insurance under the law, taking advantage of the expansion of Medicaid that allows states to extend coverage to single and childless adults — a major part of the prison population.

State and counties are enrolling inmates for two main reasons. Although Medicaid does not cover standard health care for inmates, it can pay for their hospital stays beyond 24 hours — meaning states can transfer millions of dollars of obligations to the federal government.

But the most important benefit of the program, corrections officials say, is that inmates who are enrolled in Medicaid while in jail or prison can have coverage after they get out. People coming out of jail or prison have disproportionately high rates of chronic diseases, especially mental illness and addictive disorders. Few, however, have insurance, and many would qualify for Medicaid under the income test for the program — 138 percent of the poverty line — in the 25 states that have elected to expand their programs....

Opponents of the Affordable Care Act say that expanding Medicaid has further burdened an already overburdened program, and that allowing enrollment of inmates only worsens the problem. They also contend that while shifting inmate health care costs to the federal government may help states’ budgets, it will deepen the federal deficit. And they assert that allowing newly released inmates to receive could present new public relations problems for the Affordable Care Act. “There can be little doubt that it would be controversial if it was widely understood that a substantial proportion of the Medicaid expansion that taxpayers are funding would be directed toward convicted criminals,” said Avik Roy, a senior fellow at the Manhattan Institute, a conservative policy group....

In the past, states and counties have paid for almost all the health care services provided to jail and prison inmates, who are guaranteed such care under the Eighth Amendment. According to a report by the Pew Charitable Trusts, 44 states spent $6.5 billion on prison health care in 2008.

 In Ohio, health care for prisoners cost $225 million in 2010 and accounted for 20 percent of the state’s corrections budget. Extended hospital stays — treatment for cancer or heart attacks or lengthy psychiatric hospitalizations, for example — are particularly expensive Stuart Hudson, managing director of health care for Ohio’s Department of Rehabilitation and Correction, said his department, which plans to start enrolling inmates in Medicaid when they have been in the hospital for 24 hours, expects to save $18 million a year through the practice, “although it’s hard to know for sure, because there’s other eligibility factors we have to keep in mind.”

Nancy Griffith, Multnomah County’s director of corrections health, said the county expected to save an estimated $1 million annually in hospital expenses by enrolling eligible inmates and passing the costs to the federal government. More money could be saved over the long term, she added, if connecting newly released inmates to services helps to keep them out of jail and reduces visits to emergency rooms, the most expensive form of care. “The ability for us to be able to call up a treatment provider and say, ‘We have this person we want to refer to you and guess what, you can actually get payment now,’ changes the lives of these people,” Ms. Griffith said.

Rick Raemisch, executive director of Colorado’s Department of Corrections, said that billing Medicaid for hospital care would save “several million dollars” each year.  But as important, he said, was the chance to coordinate care for prisoners after their release. About 70 percent of prison inmates in the state have problems with addiction, he said, and 34 percent suffer from mental illness.

Recent related posts:

March 10, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, March 08, 2014

"The New Normal? Prosecutorial Charging in California after Public Safety Realignment"

The title of this post is the title of this massive new article reflecting massively important research by W. David Ball and Robert Weisberg about the ways in which new sentencing/corrections reform in California may be impacting prosecutorial practices.  Here is the article's massive abstract:

California’s Public Safety Realignment Act (“Realignment” or “AB 109”) shifts the responsibility of supervising, tracking and imprisoning specified non-serious, non-violent, non-sexual (“triple-nons” or “N3 felonies” or “non-non-nons”) offenders previously bound for state prison to county jails and probation.  The implementation of Realignment in California is the largest correctional experiment of its kind.  The advent of Realignment has, of course, affected the decisionmaking of all the official actors in the criminal justice system. But the prosecutor’s role is unique in one clear sense: Prosecutors have, in formal legal terms, virtually unreviewable autonomy in the choice to charge or not charge (so long as any charge matches provable facts with statutory elements).

How does this power operate in the wake of AB 109? Our hypothesis was that many aspects of AB 109 were likely to affect prosecutors’ charging and sentence recommendation choices.  The most salient aspects were the change in site and de facto length of incarceration, as well as the secondary effects of new county responsibilities for post-release supervision of many prison parolees.  In particular, in exercising discretion, prosecutors might be influenced by their views on the differences in the severity of experience of incarceration in jail as opposed to prison, or by their concerns about jail crowding or the extra costs that county jails and other county agencies might have to absorb under AB 109.

We explored this hypothesis through three study components. First, we established a rough charging baseline through an empirical study.  With obtained data from the Attorney General’s office, we examined arrest-to-charging ratios by year and by crime category before and after Realignment.  We found very few and small differences, including insignificant differences across counties, and very few differences across crimes.

Second, we exhaustively analyzed the statutory elements of certain very common crimes that fall within AB 109, especially drug and property crimes, and we consulted in great depth with two distinguished California prosecutors, both involved in AB 109 training. Our aim was to find parts of the penal code that applied to similar fact patterns that, nevertheless, would result in significantly different sentencing outcomes.  These parts of the code isolate various fault lines in AB 109, which both served as a foundation for the third part of our study and served as a significant roadmap to AB 109 itself.

Third, we surveyed District Attorneys themselves, using a factorial approach that isolates various statutory and extralegal factors.  Our questions focused on whether the new sentencing structure might alter prosecutorial decisionmaking in terms of tilting borderline charges towards prison-eligible crimes or recommending especially long jail sentences.  We again found no significant differences, although, for reasons we explain in the paper, these conclusions must be read as tentative.

In sum, most charging or recommendation preferences remain consistent with traditional severity factors and do not manifest major alterations in light of AB 109.  However, there remains a great deal of uncertainty and variation in the responses we received.  This phenomenon manifested itself particularly when prosecutors had to choose from the menu of straight, split, and probation sentences.  Recommended terms for split sentences — those involving a combination of jail terms and community supervision — were all over the map, ranging from short terms of both jail and supervision, to short jail and a long tail, to long jail and a short tail.  At the same time, jail sentences, obviously available before Realignment but now extended to formerly prison-eligible sentences, were also wildly divergent on the same facts, ranging from a year or less to 20 years or more.  Our conjecture is that the new regime of Realignment, introduced alongside the existing sentencing regime, might invite wide variation in sentencing recommendations (with possible attendant unjustified disparities).

March 8, 2014 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 06, 2014

Fascinating split Ninth Circuit ruling on prisoner 1983 suits

Because I obsess much more over sentencing matters rather than corrections, I am not likely to muster all the time and energy needed to fully consume and assess what an en banc Ninth Circuit panel did today in the prisoner rights case of Peralta v. Dilliard, No. 09-55907 (9th Cir. March 6, 2014) (available here).  But I know enough to know the ruling is fascinating for various reasons, as this unofficial court-staff summary highlights:

The en banc court affirmed the district court’s judgment following a jury verdict in favor of a prison dentist and affirmed the district court’s judgment as a matter of law in favor of prison administrators in a 42 U.S.C. § 1983 action alleging deliberate indifference to medical needs in connection with a prisoner’s dental care.

The court held that a prison official sued for money damages under § 1983 may raise a lack of available resources as a defense. The court held that the district court’s challenged jury instruction in this case properly advised the jury to consider the resources that the prison dentist had available when determining if he was deliberately indifferent. The court held that to the extent the court’s prior decisions in Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), and Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012), could be read to apply to monetary damages against an official who lacks authority over budgeting decisions, they were overruled.

The court held that the jury had sufficient evidence on which to base a finding that a lack of resources caused any delay in providing care. The court further held that the district court did not err by granting judgment as a matter of law in favor of Dr. Fitter, the prison’s Chief Medical Officer and Dr. Dillard, the Chief Dental Officer.

The court held that the district court’s prior decision refusing to grant Fitter and Dillard summary judgment did not, under law of the case, preclude the district court from reconsidering its pretrial ruling.

Dissenting in part and concurring in part, Judge Christen, joined by Judges Rawlinson, M. Smith, and Hurwitz and Judge Bybee as to parts I, II, and III, stated that the decision overturned more than thirty years of circuit precedent by holding that lack of resources is a defense to providing constitutionally inadequate care for prisoners. She joined the majority in affirming the dismissal of plaintiff’s claims against Dr. Fitter, but she disagreed with the majority’s conclusion that a directed verdict was appropriate on plaintiff’s claims against Dr. Dillard.

Dissenting in part and concurring in part, Judge Hurwitz, joined by Judges Rawlinson, M. Smith and Christen, and Judge Bybee as to parts I and II, stated that the majority effectively held that a state can first choose to underfund the medical treatment of its wards, and then excuse the Eighth Amendment violations caused by the underfunding. Judge Hurwitz stated that as to Dr. Fitter, the majority correctly held that he was entitled to qualified immunity as he had relied on his staff’s medical judgment.

I would be especially eager to know from people in the know if they think this case seems likely to end up before the Justices on the merits.

March 6, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"How to Lie with Rape Statistics: America's Hidden Rape Crisis"

The title of this post is the title of this intriguing new paper on SSRN authored by Corey Rayburn Yung. Here is the abstract:

During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime.  Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime.  The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint.

This study addresses how widespread the practice of undercounting rape is in police departments across the country.  Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection technique to determine which jurisdictions have substantial anomalies in their data.  Using this novel method to determine if other municipalities likely failed to report the true number of rape complaints made, I find significant undercounting of rape incidents by police departments across the country.  The results indicate that approximately 22% of the 210 studied police departments responsible for populations of at least 100,000 persons have substantial statistical irregularities in their rape data indicating considerable undercounting from 1995 to 2012.  Notably, the number of undercounting jurisdictions has increased by over 61% during the eighteen years studied.

Correcting the data to remove police undercounting by imputing data from highly correlated murder rates, the study conservatively estimates that 796,213 to 1,145,309 complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 to 2012.  Further, the corrected data reveal that the study period includes fifteen to eighteen of the highest rates of rape since tracking of the data began in 1930. Instead of experiencing the widely reported "great decline" in rape, America is in the midst of a hidden rape crisis.  Further, the techniques that conceal rape complaints deprioritize those cases so that police conduct little or no investigation. Consequently, police leave serial rapists, who constitute the overwhelming majority of rapists, free to attack more victims. Based upon the findings of this study, governments at all levels must revitalize efforts to combat the cloaked rise in sexual violence and the federal government must exercise greater oversight of the crime reporting process to ensure accuracy of the data provided.

March 6, 2014 in National and State Crime Data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, March 05, 2014

Michigan enacts Miller fix for current and future cases, just as its Justices are to consider past cases

As reported in this local article, headlined "Gov. Rick Snyder signs 'juvenile lifer' update as old cases head to Michigan Supreme Court," the Great Lakes State is busy this week working through all the fall-out from the U.S. Supreme Court's Miller Eighth Amendment ruling.  Here are some of the details:

Michigan Gov. Rick Snyder on Tuesday signed legislation updating state sentencing guidelines in the wake of a 2012 U.S. Supreme Court decision that outlawed mandatory life terms without the possibility of parole for minors....

Senate Bill 319, sponsored by state Sen. Rick Jones (R-Grand Ledge), changes Michigan law for all pending and future cases involving juvenile defendants convicted of first-degree murder, felony murder or certain repeat sexual assault offenses. Instead of handing down mandatory life sentences in those cases, judges can also consider a term of between 25 and 60 years. Prosecutors may still file a request for a natural life sentence, but judges now have new authority to consider other options....

Michigan is home to some 360 juvenile lifers -- more than all but one other state -- but the new law will not have an immediate impact on most inmates already behind bars.  The U.S. Supreme Court, in banning mandatory life sentences for minors, did not indicate whether the ruling should apply retroactively.  The new law contains a "trigger" for resentencing hearings in case of a future court ruling.

The Michigan Supreme Court is set to consider the "retroactivity" question on Thursday, when justices are scheduled to hear oral arguments in three juvenile lifer cases. Two of the offenders, Raymond Carp and Cortez Davis, have exhausted the traditional appeals process but are seeking resentencing.

The third, Dakotah Eliason, is entitled to resentencing because his case is still on appeal, but his attorneys disputed the limited relief offered by the Michigan Court of Appeals, which told a sentencing judge to consider only two options: life with or without the possibility of parole. Michigan's new law, which also allows for a term of years less than life, makes that particular issue moot.  The Eliason case asks the Michigan Supreme Court to consider other issues as well, however, so it's unclear how oral arguments will proceed.

It may be just coincidence that the Michigan legislature got a Miller fix enacted into law just before the Michigan Supreme Court considers retroactive application of Miller to past cases. But I have to think the Michigan Supreme Court might feel (consciously or unconsciously) at least a bit more comfortable concluding that Miller applies retroactively now that the state has a new sentencing scheme for juve murderers on the books.

Michigan media has been covering the Miller application/litigation story quite effectively in the run up to the state's Supreme Court hearing, and here are the headline links to some of the coverage in the last few weeks:

March 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?

The question in the title of this post is my reaction to this wonderful new AP news from my own state, which carries the headline "State reports record-low Ohio prisoner return rate."  Here are the details:

Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars.  The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.

The rate affects not just the prison system’s bottom line but the bigger goal of reducing crime in Ohio, prisons director Gary Mohr said.  “If our people being released from prison are committing less offenses, then we have less crime victims,” Mohr told The Associated Press. “I think that’s the most important piece.”  Saving money on prison operations also means more state dollars can be spent earlier in people’s lives on things like education, he added.

Going forward, the expansion of Medicaid is expected to help connect incarcerated people to needed resources as they come home.  The state projects that roughly 366,000 residents will be newly eligible for coverage by the end of June 2015 by increasing the state-federal health care program for poor children and families.  Mohr says a lower return rate will also help the state reduce its prisoner population, currently about 50,500.

A 2011 sentencing law meant to lower the number hasn’t had the desired impact, leading to fears that the state may need to spend millions to build a new prison after 2017, while pushing judges to rethink sentences and placing a greater emphasis on rehabilitation.  The current prison population hasn’t changed much since 2011, despite projections that it would drop to 47,000 by 2015 and continue to decline.... Ohio’s prisoner population could grow to 52,000 in two years and top 53,000 in six years, Mohr warned last year....

It’s not that the 2011 law is failing.  Challenges, including a recent increase in violent crime and an uptick in cases filed by prosecutors, are holding back promises that the law would lower the prisoner population.  Ohio Supreme Court Chief Justice Maureen O’Connor has said the courts are also part of the problem and called on judges to be more diligent about reducing the number of offenders behind bars.

The rate announced Wednesday is based on a three-year study of inmates released in 2010.

The report/study on which this article is based is available at this link under the simple title "DRC Recidivism Rates."  I would be grateful for any and all help figuring out if there are other big important conclusions or lessons (good or bad) to be drawn from this report beyond the one discussed above.

March 5, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Intriguing SCOTUS mens rea ruling in Rosemond applying 924(c) gun charge

The Supreme Court handed down one criminal justice ruling this morning in Rosemond v. US, No. 12–895 (S. Ct. March 5, 2014) (available here).  Here is the intriguing composition of the Court in this 7-2 ruling:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8.  ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.

Here is how Justice Kagan's opinion for the Court gets started:

A federal criminal statute, § 924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.”  In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense.  We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.  We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

Here is how Justice Alito's partial dissent gets going:

I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point.  Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en­gaging in the conduct at issue. Ante, at 13. This rule represents an important and, as far as I am aware, un­precedented alteration of the law of aiding and abetting and of the law of intentionality generally.

March 5, 2014 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, March 04, 2014

Why the #@$%! are IQ tests, but not burdens of proof, the key issue in Hall?

The question in the title of this post is my basic reaction to what struck me as a very annoying SCOTUS oral argument yesterday in Hall v. Florida concerning how states must deal with the Atkins categroical Eighth Amendment constitutional bar on executing defendants who are mentlly retarded.  The transcript of the argument is available at this link, and Lyle Denniston has this SCOTUSblog summary of what transpired.  Here is the start of Lyle's recap:

If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error.  That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.

A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.

Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior.  He was among the most active in questioning Florida’s approach to mental retardation among those on death row.  And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades — an issue that is not directly involved in the new case of Hall v. Florida.

Justice Antonin Scalia expended considerable effort to buttress Florida’s basic argument that the scientific community cannot be trusted to make the rules for eligibility for capital punishment, but except for some supportive hints from Justice Samuel A. Alito, Jr., this seemed to be a largely forlorn endeavor.

Most of the other Justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced, so that the risk of error was taken fully into account.  While such a rule might not definitely hand over the details to the judgment of scientists and doctors, it apparently would not tolerate an approach designed simply to assure that fewer death-row inmates get off with a claim of mental disability.  That appeared to be Florida’s main objective.

This account of the tenor of the Hall oral argument seems right, and yesterday's SCOTUS discussion reinforces the all-too-usual modern death penalty dynamic of Justice Kennedy seemingly being the swing vote so that whatever he may think about hard capital issues becomes Eighth Amendment jurisprudence.  But beyond my standard annoyance with modern constitutional death penalty law now being all about what Justice Kennedy thinks, the Hall oral argument has me extra annoyed because the Court seems intent on focusing application of Atkins on the narrow medical issue of how exactly IQ tests can be used when assessing mental disability rather than on the critical legal/constitutional issue of how burdens of proof can be allocated when deciding who is exempt from the death penalty.

I suppose I should not be too surprised, based both on the cert grant and the approach taken by the advocates in Hall, that Florida's IQ line-drawing approach to Atkins took center stage during yesterday's SCOTUS argument.  But as Kent highlights in this effective post at Crime & Consequences, the discussion of statistics and IQ measurement error among the Justices was garbled at best, and really more an example of junk science on display rather than a serious exploration of whether and when an inexact measurement device (an IQ test) can itself establish at the margins placement of a defendant in an inexact medical category (mentally retarded/disabled) which SCOTUS has given legal significance via its Eighth Amendment jurisprudence.  

That IQ is, at best, an inexact measurement device is amply proved by the Brief of petitioner Freddie Lee Hall: that brief indicates that IQ measurements for Hall have ranged from 60 to 80 and that various doctors at various times have scored his IQ at 71, 72, 73, 74, 76, and 79.  This reality suggests that IQ tests can only provide a general fuzzy picture of a person's mental abilities and that it would be foolish and misguided for anyone to use IQ scores alone as dispostive "scientific" or "objective" evidence of whether a murderer is or is not mentally retarded/disabled.  In this sense, I suppose, Florida does look bad having a bright-line IQ line for administering Atkins.  But given that IQ tests will always scatter in these kinds of cases, I think the legal issue of who bears the burden of proof and at what level as to Atkins claims is what ultimately determines the reach of Atkins in any state.

If SCOTUS strikes down the current Florida approach to Atkins without speaking to burdens of proof, Florida could then just employ Gerogia's approach to "assure that fewer death-row inmates get off with a claim of mental disability" by requiring defendants to prove they have MR beyond a reasonable doubt (or perhaps even say beyond all doubt).  Already, Florida requires a defendant to prove his disability by clear and convincing evidence, and that standard (with or without an IQ requirement) necessarily entails that Florida will be able to execute murderers whom judges reasonably think, but are not clearly convinced, are mentally retarded/disabled.   The experience in since Atkins makes clear that states eager to limit who gets off death row can do so using legal standards like proof burdens rather than relying just on IQ numbers.  Thus if (and when?) SCOTUS only addresses how IQ tests are used in Hall and dodges any discussion of burdens of proof, Atkins application issues (and interstate Atkins disparity) will persist.

I suppose I am frustrated here in large part because SCOTUS has long been eager to avoid, in all sorts of settings, establishing any clear and predicatble constitutional rules for burdens of proof concerning facts or factors that impact only sentencing determinations and not guilt.  These burden-of-proof issues, which may be viewed as a Fifth Amendment due process concern and/or an Eighth Amendment concern depending on the setting, can be found lurking in the Apprendi-Blakely Sixth Amendment line of cases, but they have never gotten the independent treatment that I think they merit and needs  I have long been hoping Hall might finally lead to some useful burden-of-proof constitutional jurisprudence, but after the oral argument I am no longer hopeful on this front.

March 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

"The Pedagogical Prosecutor"

The title of this post is the title of this interesting new article by Nirej Sekhon now available via SSRN. Here is the abstract:

Scholarship on prosecutorial discretion is almost entirely preoccupied with crafting regulations that promote prosecutorial accountability.  Accountability, however, is a two-way street. Existing scholarship does not recognize prosecutors' unique capacity to hold legislators and citizens accountable for their preferences, biases, and blind spots.  Drawing on political theory, this essay proposes a novel framework for conceptualizing the prosecutor's role in a pluralist, democratic society.

The choice to prosecute or decline a case can produce significant social and political meaning: e.g., affirming the value of a victim's life, validating a community's sense of loss, or highlighting an offender's depravity.  Hate-crime and "stand-your-ground" laws illustrate prosecutors' broad discretionary power to generate social and political meaning. These laws were often controversial when enacted.  Enactment, however, did not exhaust the basis for controversy. Rather, vague statutory language simply left it to prosecutors to decide when and how the laws should apply.

The furor that erupted after George Zimmerman shot Trayvon Martin reveals how fraught those choices can be.  While Zimmerman's acquittal might appear to vindicate prosecutors' initial choice to decline the case, that view is incorrect.  I argue that prosecutors should use their expressive power towards pedagogical ends; prosecuting Zimmerman was consistent with that ideal, the acquittal notwithstanding.  Behaving pedagogically means actively promoting political dialogue amongst legislators and citizens.  This ideal values public airing over conviction maximization. I conclude by identifying some of the obligations that attend the pedagogical ideal and steps that might encourage prosecutors to embrace it.  Doing so will not just promote better criminal justice, but a healthier democracy.

March 4, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, March 03, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

SCOTUS grants cert in (small?) cases involving jury dishonestly and religious freedom in prison

As reported here at SCOTUSblog, the Supreme Court this morning granted cert in five cases.  Two of these cases ought to interest criminal justice fans, as described by Lyle Denniston:

The Supreme Court, beginning to shape its docket for the next Term starting in October, agreed on Monday to hear five new cases, including a constitutional challenge to a state prison system’s policy barring inmates from wearing beards....

The Court has already rounded out the list of cases it will hear and decide during the current Term, so all new granted cases will go over to October or later.

 Here, in brief, are the issues in the granted cases:...

Warger v. Shauers — scope of a right to new trial in federal court because of alleged dishonesty by a juror during the jury selection process....

Holt v. Hobbs — religiously based challenge, under the federal Religious Land Use and Institutionalized Persons Act, to the Arkansas prison system’s ban on the wearing of beards by inmates.  (This is a case filed directly by an inmate, in a hand-written petition.)

These grants, combined with the relatively limited number of major criminal justice cases on the SCOTUS docket in the current Term, reinforce my sense that the Justices are right now largely content to play "small ball" on a range of issues as they continue to be stalked by any number of big lurking criminal justice issues relating to the Second (right to carry), Fourth (GPS tracking), Sixth (applications of Apprendi and Booker) and Eighth Amendments (applications of Graham and Miller).

March 3, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Detailing the impact and import of Burrage on the federal drug war

The Supreme Court a few weeks ago in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected federal prosecutors' arguments to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant.  Now, via this notable ABC News report headlined "U.S. Drug Cases Getting Rehabbed After Supreme Court Decision," we learn about some of the early impact of this ruling:

A week before actor Philip Seymour Hoffman overdosed on a mix of heroin, cocaine and other drugs, the Supreme Court restrained what one top prosecutor called "the strongest tool" federal authorities have to go after dealers in such cases, and now some U.S. drug prosecutions are getting sent to rehab. "We may not be able to meet the standard of proof in those cases," the U.S. Attorney in Vermont, Tris Coffin, said of overdose cases involving a cocktail of drugs. "It will have some impact."

In fact, a federal judge in Kentucky has already vacated the most severe charge against 53-year-old Harold Salyers, a father who was certain to spend decades in prison after being convicted last year of selling heroin to a man who then died. In Alaska and Ohio, defense attorneys are separately hoping their clients can similarly benefit from the high court's recent decision.

On average, drug traffickers in federal cases are sentenced to less than seven years behind bars.  But "when death or serious bodily injury results," the dealer can face a mandatory minimum of 20 years and as long as life in prison, according to federal law. Federal authorities have long sought the stiffer charge when a dealer's drugs contributed in some way to an overdose.

In January, though, the Supreme Court ruled the dealer's drugs need to do more than just contribute, they need to be "the straw that broke the camel's back," as one Justice Department official put it. That's "problematic," especially in overdose cases where an accused dealer's drugs are not the only drugs involved, according to the official. Nearly half of all overdoses involve multiple drugs, federal statistics indicate. "Now we need to [prove] not that just drugs killed them, but which drugs killed them," said the Justice Department official, speaking on the condition of anonymity....

The Supreme Court decision in Burrage v. United States initially received scant news coverage and only moderate notice since actor Hoffman's overdose -- a case being handled by local authorities in New York that highlights some of the obstacles to bringing federal charges.  Still, top federal prosecutors said they don't believe the high court's decision is "a significant setback" or "a real game-changer for us."

Medical experts will just have to dig deeper to determine a drug's exact role in death, and federal prosecutors rarely seek the stiffer charge anyway, even when an overdose occurs, according to both Coffin and Harvey, the U.S. attorneys. "We're going to be fine" and will bring "most of the cases we want to bring," Harvey said.

But the Justice Department official, speaking on condition of anonymity, said finding medical experts who can determine a drug's exact role is not so easy and "is a big burden on the government." Plus, the official said, the Supreme Court decision could be "a blow" to investigative efforts. "The 20-year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain," the official said. "It's been a really good negotiating tool."

There are so many interesting aspects to this Burrage follow-up story, and it highlights for me that it might be very interesting and very valuable for some researchers to assemble and analyze data on how the mandatory minimum sentencing provision at issue in Burrage has been applied in the years before this SCOTUS ruling and how it gets applied in the coming years.

But I especially like and find helpful the candid and astute quotes from the unnamed Justice Department official reprinted at the end of this excerpt. The quote so efficiently and effectively captures the real work and importance of all modern mandatory minimum sentencing terms in the federal system: they mostly exist to reduce "a big burden on the government" by providing a ready and "tremendously efficient" to scare "the dickens out of people so they cooperate up the chain" and thus serve as a "really good negotiating tool."

As I have said before and will say again, for those who favor a big federal criminal justice system having lots of power with limited burdens on a "tremendously efficient" means scare "the dickens out of people so they cooperate" with government officials, the current operating structure and modern application of federal mandatory minimums are still working pretty well despite the setback that Burrage may represent for one of these potent prosecutorial weapons in the drug war. But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used (persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights.

March 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

SCOTUS finally to grapple with how states are applying Atkins

I helped represent a Texas death-row defendant with a very low IQ in habeas appeals years before the 2002 SCOTUS ruling in Atkins v. Virginia decided the Eighth Amendment precludes execution of murderers who are mental retarded.  As a result of that work two decades ago, I have long been interested in the question the Supreme Court will this morning finally confront at oral argument in Hall v. Florida: how can (or must) states define and apply mental retardation for purposes of determining who is excluded from execution due to Atkins.

For a variety of reasons, Hall could end up being a huge case about constitutionally required sentencing procedures that could impact lots of cases outside the context of the death penalty.  I suspect, however, that some Justices will be eager to ensure the Court's work in Hall ends up modest and limited.  For this reason, I think today's oral argument may provide an interesting window into how certain Justices are approaching Hall and this broader issues of procedure and federalism that it raises.

I expect to post on the substance of the Hall oral argument later this week.  But for more pre-game analysis, here are a few media reports and commentaries on Hall:

March 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack