Thursday, December 07, 2017

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, December 06, 2017

Notable state and federal developments in the Garcia Zarate/Kate Steinle case

Last week, I blogged here about the California state court verdict in a high-profile homicide case, asking in the title of my post "Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after 'disgraceful verdict in the Kate Steinle case'?."  As noted below, we already have an answer to this question, though there is also state prosecution news we should cover first.

Specifically, as reported here, the "attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well." Here is more:

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.  Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

Because I am not well versed in California's law of possession, I cannot provide an informed assessment of whether this defense claim provides a compelling basis to reverse the one state conviction the state jury brought back against Garcia Zarate. But I can provide a link to and excerpt from this press release from the US Department of Justice highlighting why federal possession law is now of great import to Garcia Zarate:

A federal grand jury indicted Jose Inez Garcia-Zarate today for being a felon in possession of a firearm and ammunition, and for being an illegally present alien in possession of a firearm and ammunition, announced United States Attorney General Jefferson B. Sessions; United States Attorney Brian J. Stretch from the Northern District of California; and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent in Charge Jill Snyder.

According to the indictment, on July 1, 2015, Garcia-Zarate, a citizen of Mexico who reportedly is 47 years old, possessed a semi-automatic pistol and multiple rounds of ammunition in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and 18 U.S.C. § 922(g)(5) (unlawfully present alien in possession of a firearm).

An indictment merely alleges that a crime has been committed and Garcia-Zarate, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. Garcia-Zarate currently is in state custody on other charges.  If convicted of either violation of 18 U.S.C. § 922(g), Garcia-Zarate faces a maximum statutory penalty of 10 years in prison.  However, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Prior related post:

December 6, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, December 05, 2017

Lots of juicy SCOTUS relists for sentencing fans

Over at SCOTUSblog, John Elwood does regular yeoman's work via his "Relist Watch" postings that highlight cases that the Supreme Court considered but did not resolve during its recent certiorari review conferences.  Often (though not always), the relisting of a case is a precursor to a grant of certiorari or at least some notable ruling or commentary by some Justices.  And this week's installment of "Relist Watch" has all these exciting tales for sentencing fans:

The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment.  The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances -- such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 -- and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated.  The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment....

There’s plenty for nerds to love about the remaining eight cases....  Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.”...

That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e).  The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  Several courts of appeals have adopted that view.  These four petitions seek to challenge that conclusion.

Though the Hidalgo cert petition has already gotten lots of attention for lots of reasons, I consider the § 3582(c)(2) federal sentencing issue to be the one of this bunch most like to result in a actual grant of certiorari.   I certainly expect Justice Breyer and maybe other Justices will have something to say about the Hidalgo case if (when?) cert is denied, and gosh knows a grant in that case would add a lot of extra capital intrigue to this SCOTUS Term (which many think will be Justice Kennedy's last).

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Remorse Bias"

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

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

December 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (23)

New lawsuit claims Nebraska's death penalty repeal, before voter capital punishment preservation by initiative, precludes execution of already condemned

As reported in this local article, headlined "ACLU of Nebraska sues to block executions, says Ricketts overstepped in referendum process," a notable advocacy group has filed a notable new lawsuit on behalf of a notable prisoner group. Here are the details:

The 11 men on Nebraska death row do not have valid death sentences, a leading anti-capital punishment group argued in a lawsuit filed [Monday]. The ACLU of Nebraska charged that the death penalty repeal, enacted by the State Legislature over a veto by Gov. Pete Ricketts, was in effect long enough to convert the death sentences for the 11 men to life in prison.

Last year’s vote by Nebraskans to restore capital punishment did so only for future heinous murders, according to the 29-page lawsuit filed shortly after midnight. The suit also alleges that Ricketts violated the separation of powers clause of the State Constitution when he “proposed, initiated, funded, organized, operated and controlled” the signature-gathering campaign that allowed voters to overturn the Legislature’s repeal of the death penalty.

The ACLU claims that the governor “exhausted” his executive powers when he vetoed the repeal law passed by lawmakers and that his subsequent steps to back a referendum that restored the death penalty were unlawful “legislative” activities that are reserved, via the separation of powers clause, for the State Legislature.

The referendum process, the civil rights group argued, is for citizens, but Ricketts had encouraged formation of the signature drive, played a leading role in financing it and had lent key employees to the effort, which was officially led by people with strong ties to the governor. “This is way beyond what the governor can do in his personal capacity,” Danielle Conrad, executive director of the ACLU of Nebraska, said Sunday. “This is about blurring the lines and overstepping the bounds.”

A spokesman for Ricketts said Monday that the “frivolous” ACLU lawsuit was another attempt by the “liberal advocacy group” to overturn the “clear voice” of the people. Taylor Gage, the spokesperson, rejected any wrongdoing by the governor. “The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” Gage said in a prepared statement. “The administration remains committed to protecting public safety and creating a safe environment for our corrections officers.”

The Ricketts administration recently gave notice that it may soon seek an execution date for one of those 11 death row inmates, Jose Sandoval, who was sentenced to die for his leading role in the slaying of five people inside a Norfolk bank in 2002. A month ago, state prison officials notified Sandoval that four lethal injection drugs had been purchased for use in an execution. The notice is required before an execution date can be requested....

Monday’s lawsuit names the 11 men on Nebraska’s death row as plaintiffs, and follows other legal action launched by the civil rights group against the state in recent months. In August, the ACLU asked a federal judge to intervene to reduce the chronic overcrowding in state prisons and address the shortage of medical and mental health care for inmates. In addition, the ACLU went to court on Friday to force the state to reveal the supplier of four lethal-injection drugs, citing state public records laws and the state’s botched past attempts to obtain such drugs.

Conrad said the legal actions reflect the ACLU’s commitment to defend the U.S. and Nebraska Constitutions, and is in step with the organization’s long-running opposition to the death penalty. Conrad, a former state senator and a Democrat, was among the leaders of Nebraskans for Public Safety, the group that campaigned unsuccessfully to persuade voters to retain the repeal of the death penalty. She said that today’s lawsuit is about policy, not politics.

The complaint in this action is available for download at this link.

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, December 04, 2017

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

December 4, 2017 in Advisory Sentencing Guidelines, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Two Justices make statement about Alabama capital case in which cert is denied

There was not too much of note in today's order list from the Supreme Court, though sentencing fans might be intrigued by Justice Sotomayor's short statement, joined by Justice Breyer, regarding the denial of certiorari in Floyd v. Alabama. Here is how the statement starts and ends:

Petitioner Christopher Floyd was sentenced to death by an Alabama jury that was selected in a manner that raises serious concerns under our precedent in Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), and Foster v. Chatman, 578 U.S. ___ (2016).  Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention....

That we have not granted certiorari should not be construed as complacence or an affirmance of all of the reasoning of the courts below.  The unusual posture in which Floyd raised his Batson and J.E.B. claims warrants caution in the exercise of the Court’s review here.  Yet, courts reviewing claims in circumstances like these must be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process.  Such discrimination “‘casts doubt on the integrity of the judicial process,’ and places the fairness of a criminal proceeding in doubt.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (citation omitted).

December 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, December 03, 2017

SCOTUS with a set of intriguing big and small cases as it winds down 2017 oral arguments

This coming week, the Supreme Court has its last set of oral arguments before the end of the calendar year.  The case sure to get most of the mainstream press attention is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, with wedding cakes, religious liberty, same-sex marriage and free expression in the discourse. 

The three cases I will be watching most closely in the week ahead involve limits on federal preemption powers (Christie v. National Collegiate Athletic Association), attorneys fees in prisoner suits (Murphy v. Smith) and tax law obstruction requirements (Marinello v. United States).  The folks at SCOTUSblog have their always helpful argument previews posted for these cases, and here are links to these previews:

Christine v. NCAA:  Argument preview: The 10th Amendment, anti-commandeering and sports betting 

Murphy v. Smith:  Argument preview: Who should pay attorneys who win on behalf of prisoners? 

Marinello v. United States Argument preview: What limits tax law obstruction-of-justice charges? 

The federalism case is obviously the most consequential of this bunch and for many areas of law.  I helped a bit with this amicus brief discussing some of the potential criminal justice implications of these issues raised in Christie v. NCAA, and I will be quite interested to see whether and how the Justices during oral argument frame the discussion of these issues.

December 3, 2017 in Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

"Disproportionate Impact: An Impetus to Raise the Standard of Proof at Sentencing"

The title of this post is the title of this student note authored by Anthony LoMonaco recently published in the October 2017 issue of the NYU Law Review.  Here is its abstract:

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt.  But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence.  This relatively low standard can lead to a problem known as “disproportionate impact.”  Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction.  Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes.

In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005.  This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

December 3, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, December 01, 2017

Looking into the politics and personnel of state-level criminal justice reforms

The December 2017 issue of the ABA Journal has this lengthy article on state-level reform efforts, giving particular attention to recent reforms in Louisiana and Alaska. In the magazine the article has the headline "“Rallying for Reform: Criminal justice reform may be languishing at the federal level, but it’s becoming a reality in the states with bipartisan support," and here is an excerpt:

Adam Gelb, director of the Pew Charitable Trusts’ Public Safety Performance Project, says 36 states have enacted some kind of criminal justice reform — eight of them more than once — over the past 10 years.

And although those reforms can be a struggle to get through legislatures, they tend to win approval — even in “red” states such as Louisiana — because they have bipartisan support. They bring together legislators with diverse backgrounds and interests, including controlling crime, reducing corrections costs, embracing religious ideas about redemption, reducing the size of government, grappling with the effect of imprisonment on families and minority communities, and questioning the morality of locking up so many people.

“The reason that it is so bipartisan and cross branch is that it meets many objectives,” says Alison Lawrence, Criminal Justice Program director for the National Conference of State Legislatures. “I would say behind all of it, everybody cares about public safety, and that’s the underlying factor.”...

According to the Urban Institute, which studies the outcomes of justice reinvestment, achieving a better return can be met in several ways.  Reducing sentences, in a thoughtful and politically palatable way, is one component.  But so are reducing the number of people held in lieu of bail and the time they’re held, expanding eligibility for parole and other ways to be released from prison, and providing alternatives to prison for probation and parole violations.

By reducing the number of prisoners, states save money — often hundreds of millions of dollars.  Then, states “reinvest” some of that money in programs they believe will reduce crime, and therefore the need for prisons.  That includes prison-based re-entry or job training programs, more probation and parole officers, and grants to community groups that help with re-entry-related problems like mental health and substance abuse.  States may also lift the legal restrictions they place on former offenders, such as eligibility for professional licenses.

States are receptive, Gelb says, in part because they’ve seen the success of earlier adopters — especially Texas, which is the widely acknowledged godfather of justice reinvestment.  In 2007, the Texas Department of Public Safety, which handles corrections, anticipated that it would need 14,000 to 17,000 more prison beds over the next five years.  So it asked the legislature for $2 billion.  Legislators blanched at that cost and instead tried to make the new prison beds unnecessary by spending $241 million on behavioral health and alternative sanctions programs.

Ten years — and several more bills — later, Texas has actually closed several prisons.  State authorities estimate that Texas has reduced its incarceration rate by 20 percent and its crime rate by 30 percent, all while avoiding $4 billion in costs.  It’s also become a model for other states, particularly its Southern neighbors.

December 1, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after "disgraceful verdict in the Kate Steinle case"?

Download (4)The provocative question in the title of this post is prompted by this news of a (surprising?) trial verdict in California state court in a high-profile prosecution and the immediate reactions thereto.  Here are the basics (with some emphasis added):

A jury handed a stunning acquittal on murder and manslaughter charges to a homeless undocumented immigrant whose arrest in the killing of Kate Steinle on a San Francisco Bay pier intensified a national debate over sanctuary laws.

In returning its verdict Thursday afternoon on the sixth day of deliberations, the Superior Court jury also pronounced Jose Ines Garcia Zarate not guilty of assault with a firearm, finding credence in defense attorneys’ argument that the shot that ricocheted off the concrete ground before piercing Steinle’s heart was an accident, with the gun discharging after the defendant stumbled upon it on the waterfront on July 1, 2015.

Garcia Zarate, a 45-year-old Mexican citizen who was released from County Jail before the killing despite a federal request that he be held for his sixth deportation, was convicted of a single lesser charge of being a felon in possession of a gun. He faces a sentence of 16 months, two years or three years in state prison. Garcia Zarate, who has already served well over two years in jail and gets credit for that time, will be sentenced at a date not yet determined.

The verdict set off a flurry of reactions.  Defense attorneys said the case had been overcharged, while U.S. Attorney General Jeff Sessions blamed the killing on San Francisco’s policy of refusing cooperation with immigration agents. Jim Steinle, who had been strolling on the pier with his daughter when she fell, told The Chronicle he was “saddened and shocked,” adding, “Justice was rendered, but it was not served.”...

President Trump, who has cited the case in his effort to build a border wall, said on Twitter, “A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.”

Defense attorney Francisco Ugarte suggested a different lesson, saying, “From day one, this case was used as a means to foment hate, to foment division, to foment a program of mass deportation ... and I believe today is a vindication for the rights of immigrants.”...

Garcia Zarate was charged from the beginning with murder, and prosecutors gave the jury the option of convicting him of first-degree murder, second-degree murder or involuntary manslaughter. Jurors rejected all three.

The defendant is not likely to be released again in the city. San Francisco officials have long said they will turn over undocumented immigrants to federal authorities if they obtain a warrant, and records show Garcia Zarate is being held on a U.S. Marshals Service warrant. U.S. Immigration and Customs Enforcement “will work to take custody of Mr. Garcia Zarate and ultimately remove him from the country,” Tom Homan, the agency’s deputy director, said in a statement.

Steinle, 32, had been walking with her arm around her father on Pier 14 when she was struck in the back by a single bullet. The round had skipped off the concrete ground after being fired from a pistol that had been stolen, four days earlier, from the nearby parked car of a federal ranger. Prosecutors told the jury that Garcia Zarate brought the gun to the pier that day to do harm, aimed it toward Steinle and pulled the trigger. Assistant District Attorney Diana Garcia spent much of the trial seeking to prove the pistol that killed Steinle couldn’t have fired without a firm pull of the trigger, while establishing that Garcia Zarate tossed the weapon into the bay before fleeing the scene.

Alex Bastian, a spokesman for the district attorney’s office, said Thursday that prosecutors had found sufficient evidence for the charges at every step of the case. “The verdict that came in today was not the one we were hoping for, but I think it’s unequivocal that both sides gave it their all,” Bastian said. “This really is about the Steinle family. They’ve shown incredible resolve during this whole process, and our hearts go out to them.”

Defense lawyers said the shooting was an accident that happened when Garcia Zarate, who had a history of nonviolent drug crimes, found the gun wrapped in a T-shirt or cloth under his seat on the pier just seconds before it discharged in his hands. Lead attorney Matt Gonzalez said his client had never handled a gun and was scared by the noise, prompting him to fling the weapon into the bay, where a diver fished it out a day later....

During the monthlong trial, jurors watched video from Garcia Zarate’s four-hour police interrogation, in which he offered varying statements about his actions on the pier. At one point he said he had aimed at a “sea animal,” and at another point, he said the gun had been under a rag that lay on the ground near the waterfront, and that it fired when he stepped on it. Gonzalez said it was clear in the video that Garcia Zarate — who has spent much of his adult life behind bars, was living on the street before the shooting, and has a second-grade education — did not fully understand what the officers were asking him through an officer’s Spanish translation.

What primarily prompts the question in the title of this post is the possibility that the current federal administration might view the California state court acquittal of Garcia Zarate in terms comparable to the California state court acquittal of Los Angeles police officers for their beating of motorist Rodney King. (These verdicts, as well as OJ Simpson's acquittal, lead me to think Californians at least sometimes take "beyond a reasonable doubt" quite seriously.)  The outrage over that state court acquittal surely played a significant role in the decision by federal authorities to pursue federal charges against the LA officers.  Perhaps similar outrage (at least from Prez Trump) over this state court acquittal will have federal authorities thinking the same way. (And, as criminal procedure gurus know, the dual sovereignty doctrine means there is no Double Jeopardy limit on the feds pursuing parallel charges in this case.)

I highlighted the limited severity of the sentence that Garcia Zarate now faces in state court to highlight another reason why federal authorities might be inclined to take up this case. Even if the federal prosecutors were only able secure a federal conviction for felon in possession, that charge alone in federal court would carry a sentence of at least up to 10 years and might actually have a mandatory minimum sentence of 15 years if Zarate's criminal history made him subject to the Armed Career Criminal Act (ACCA).  And, of course, the feds could and would get their usual two bites at the apple if they also charged various homicide offenses: a jury conviction of homicide charges would immediately raise the sentencing stakes, but even a jury acquittal would not preclude prosecutors from arguing to the judge that Steinle's death was critical "relevant conduct" at sentencing that should drive up his guideline range.

Last but not least, as I was typing up these thoughts, I saw this new FoxNews report headlined "DOJ weighing federal charges in Kate Steinle murder case, after not guilty verdict." Here is a snippet:

Justice Department spokeswoman Sarah Isgur Flores acknowledged Friday that the DOJ is looking at federal charges.  She suggested a possible charge could be felony re-entry or a charge pertaining to a violation of supervised release.  “We’re looking at every option and we will prosecute this to the fullest extent of the law because these cases are tragic and entirely preventable,” Flores said on “Fox & Friends” Friday.

If DOJ is really serious about "prosecut[ing] this to the fullest extent of the law," it seems to me that there are many more charges available beyond just immigration offenses (although those offenses, too, could be used to imprison Zarate for decades).

December 1, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18)

Thursday, November 30, 2017

"Finality and the Capital/Non-Capital Punishment Divide"

The title of this post is the title of this new paper authored by Carissa Byrne Hessick now available via SSRN. Here is its abstract:

This book chapter examines the role that concerns about finality have played in both capital cases and juvenile life-without-parole sentencing cases.  It will describe how finality has shaped the Supreme Court’s death penalty cases, as well as the role it has played in recent juvenile life-without-parole cases.  It will then offer some tentative thoughts on whether the non-capital finality concerns — specifically, the perceived need for post-sentencing assessments — should be extended to capital defendants and how post-sentencing assessments might inform the ongoing debate over the death penalty abolition in the United States.

November 30, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, November 29, 2017

Anyone have hot sentencing takes on the Supreme Court's big Fourth Amendment Carpenter case being argued today?

Folks interested in both criminal law and technology have been buzzing about the case Carpenter v. United States for quite some time.  Today, finally, the Supreme Court hears oral argument on this basic issue: "Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment."

As they do so well, the folks at SCOTUSblog provide lots of helpful background and coverage though this case page with all the briefs linked, this preview by Amy Howe, and this on-line summer symposium.  And I expect SCOTUSblog will have lots of post-argument analysis this afternoon and in the days ahead, especially if this morning's oral argument is as interesting as everyone expects.

I have not blogged about the Carpenter case in part because it is well covered by many others and in part because the sentencing echoes of the case may be remote.  But practitioners may see more direct connections between Carpenter and sentencing than I see from the ivory tower, and I welcome this morning any and all "hot takes" on the case as it might relate to any and all sentencing stories.

November 29, 2017 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (13)

Tuesday, November 28, 2017

"Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice"

The title of this post is the title of this notable new paper now on SSRN authored by Mark Bennett and Victoria Plaut. Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery.  We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor.  We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences.  We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

November 28, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"Has Plea Bargaining Destroyed the Jury Trial?"

The question in the title of this post is the headline of this new commentary at The Crime Report authored by Suja Thomas. Here are excerpts:

Despite the frequent presence of juries in media coverage of trials, the public is absent from much of the democratic process created by the U.S. Constitution.  While citizens elect officials, few participate in important daily criminal and civil justice decisions by serving on juries.  Juries decide less than four percent of criminal cases and less than one percent of civil cases.  Juries don’t determine criminal defendants’ fates, because defendants plead guilty around 95-97 percent of the time.

But why would a defendant plead guilty, when a prosecutor otherwise would be required to convince a jury to convict the defendant?  Almost invariably, the defendant pleads guilty because he or she will receive more time in prison if the case went to a jury trial and resulted in conviction.  Prosecutors use charge or sentence bargaining to “incentivize” defendants. Defendants are given less time in prison if they give up their jury trial rights and plead guilty.  In fact, even innocent people have pled guilty to avoid a longer sentence, which will be imposed, if they insist on a jury trial and are convicted by a jury.

The plea with the better sentence may be available for only a short period of time — and only before the defendant has significant information about the prosecutor’s case against him. The plea may even require the defendant to waive seeing the prosecution’s evidence and waive the indictment by a grand jury (in places where grand juries are required).

Although this system is widely accepted today, is it constitutional?

The statistics tell a disconcerting story. Ten percent of those who have been found innocent pled guilty — many times because of the severe difference in the sentence if convicted before a jury versus if pleading guilty.  What about those who are guilty?  Plea bargaining is equally troublesome in those circumstances....

In the past, the Supreme Court recognized the possible constitutional problem with significant sentence incentives for pleas over jury trials.  However, later, the Court sealed the fate of the jury trial and thus criminal defendants.

In Bordenkircher v. Hayes, the prosecutor asked the defendant to take a plea offer of five years for an alleged forged check for around $90.  He threatened the defendant with a new indictment subjecting him to life in prison, if he would not take the plea.  The defendant refused to plead guilty, was subsequently indicted by a grand jury on a new life imprisonment charge, was convicted by a jury, and sentenced to life in prison.

The defendant argued this was unfair.  His right to due process was violated when the prosecutor punished him for insisting on a jury.  But the Supreme Court decided that the defendant’s constitutional rights were not infringed.  Plea bargaining was an important part of the criminal justice system.

The Court has laid aside the Constitution and defendants’ rights in favor of efficiency.  However, the jury is enshrined in the Constitution, and defendants do not freely choose pleas over jury trials when facing much stiffer sentences if convicted by juries. 

I have argued elsewhere for jury reform including “the plea offer” and “sentence” requirements. The basic idea is if a prosecutor offers a plea bargain and the defendant decides to go to trial, the plea offer as well as the sentence associated with the plea can be placed into evidence at trial for the jury to consider.  The jury then has multiple options. It can convict on the original charge, convict on the plea charge, or not convict. In deciding on what, if any, charge to convict, the jury can consider the sentence associated with the plea charge and the sentence associated with the original charge.  This practice of considering the sentences would be consistent with historical convention.  English juries knew the sentences and often acquitted or gave partial verdicts for lesser offenses based on the sentence.

November 28, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, November 26, 2017

Interesting Eighth Amendment attack waged against extreme application of Tennessee's "Drug Free School Zone" law

This recent post from the Supreme Court of Tennessee Blog reports on an interesting constitutional challenge to the severe mandatory sentence that goes with the application of Tennessee’s "Drug Free School Zone" law.  Here is an excerpt from the post by Daniel Horwitz (who happens to represent the defendant).  Links are from the original post:

groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t....

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense — Mr. Bryant had no other criminal history of any kind — because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023 — and after over nine years of incarceration — will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours — especially when a government informant has set up a drug transaction inside a school zone on purpose....

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”...

Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters — including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists — have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

November 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Is California finally going to get it machinery of death operational come 2018?

The question in the title of this post is prompted by this new Los Angeles Times article headlined "Pace of executions in California may be up to Gov. Jerry Brown." Here are excerpts:

When the California Supreme Court upheld a voter initiative in August to speed up executions, some death penalty advocates assumed lethal injections would resume before the end of the year. Three months after the court’s action, both backers and opponents of the death penalty concede that executions might be more than a year away.

Gov. Jerry Brown’s administration has yet to finalize an execution protocol, which is necessary to resolve a federal court case that has blocked lethal injection in California for nearly 12 years.  An injunction stopping executions also is pending in state court.

“Brown is the shot caller” in the litigation over lethal injection, said Michele Hanisee, president of the Assn. of Deputy District Attorneys for L.A. County. Hanisee expects the state to finalize a lethal injection protocol by January, but if Brown “doesn’t want it to move forward quickly, it won’t move forward quickly,” she said.

Although no one can now predict when executions will resume, UC Berkeley law school Dean Erwin Chemerinsky said “it is just a matter of time.”

“The uncertainty in all of this,” he added, “is what will Jerry Brown do.”  Brown personally opposes the death penalty but enforced it as attorney general.  He took no position on two recent and unsuccessful ballot measures that would have ended the death penalty.

Chemerinsky and other lawyers said it was conceivable that Brown and defense lawyers could delay executions until Brown steps down as governor in January 2019. Brown also could try to commute death sentences to life without parole, but his power is limited by the California Constitution. Unlike former Illinois Gov. George Ryan, who just before leaving office in 2003 commuted the death sentences of all of Illinois’ condemned inmates, Brown would need the support of the state Supreme Court to spare inmates with multiple felonies on their records.

Lawyers estimate that at least half of all death-row inmates have committed two felonies. The governor would need the support of four of the seven California high court justices to commute those inmates’ sentences. Brown has three appointees on the court and a fourth vacancy to fill. But whether his appointees would support commutations is questionable. Two of them — Justices Goodwin Liu and Mariano-Florentino Cuéllar — are moderately liberal, but Justice Leondra Kruger, the third, has voted with conservatives on criminal justice issues.

Ronald Reagan was the last California governor to commute a death sentence, deciding in 1967 to move Calvin Thomas off death row because Thomas had serious brain damage. Under former Gov. Pat Brown, Jerry Brown’s father, 35 death row inmates were executed. The elder Brown commuted the capital sentences of 20 others.

Among the most famous executions under Pat Brown’s watch was that of Caryl Chessman, convicted of robbery, sexual assaults and kidnapping. He was sentenced to death under a law, later repealed, that made certain kidnappings capital offenses. Chessman, who represented himself at trial, wrote four books on death row and attracted international sympathy. The elder Brown tried to commute Chessman’s sentence, but the California Supreme Court refused to go along, on a 4 to 3 vote.

Jerry Brown has never faced the wrenching decisions that confronted his father over executions, and the issue also is new for Atty. Gen. Xavier Becerra, appointed by Brown after Kamala Harris was elected to the U.S. Senate. Becerra, now the top law enforcement officer in California, has testified that he supports the death penalty, but not “the way it is being executed,” and would enforce Proposition 66, the execution speed-up measure largely upheld by the state supreme court in August. Becerra also has said he would run for election to continue as attorney general.

Prosecutors are expected to press Becerra to move quickly to overturn the injunctions preventing executions, but his role is to represent Brown’s Department of Corrections and Rehabilitation in the case, a Becerra press aide said. Prosecutors, who sponsored Proposition 66, and crime victims also are considering trying to intervene in the two court cases preventing executions....

“There is no enthusiasm inside the administration to do anything” to hasten executions, said Michael D. Rushford, the founder and top executive of the Criminal Justice Legal Foundation, a conservative nonprofit that helped write Proposition 66. Voters narrowly approved the measure a year ago. The state Supreme Court ruling that permitted its enforcement became final only a few weeks ago, delayed by an unsuccessful request from challengers for the court to reconsider. “There are laws in this state that if the administration doesn’t want to enforce, they don’t,” Rushford said, “and this is one of them.”

Rushford’s group sued to force the Brown administration to produce a single-drug lethal injection method, which has not yet been made final, and has warned it would sue the administration again if it does not move toward executions.

There are about 18 inmates who could immediately be executed because they have no appeals left. But these inmates have obtained federal stays to prevent their executions until the lethal injection case overseen by Seeborg is concluded. For the stays to be lifted, Seeborg would have to decide that California’s new single-drug method of execution, once finalized, did not violate the U.S. Constitution’s ban on cruel and unusual punishment. Whatever he decides could then be appealed....

Brown’s press office referred questions about executions and possible commutations to the Department of Corrections and Rehabilitation, which said it was revising a lethal injection protocol but declined to estimate how long that might take.

Ana Zamora, a policy director of the ACLU of Northern California, said she does not expect executions to resume soon. “The D.A.s and the proponents of Prop. 66 really sold voters a false bill of good,” she said. “Nothing has changed. There are still significant problems around lethal injection, and those are not going to go away anytime soon.”

If I understand the sequence of events that needs to take place before a California execution goes forward, it includes (1) California officials finalizing an execution protocol, (2) the federal district court approving that protocol, (3) the Ninth Circuit and SCOTUS affirming a decision about the protocol. and (4) setting a real execution date by California officials.  I am inclined at this moment to predict that California will not complete these tasks (in part because it seems many do not wish to) before the end of 2018.

November 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, November 24, 2017

"What Rape Reform Needs: More Convictions, Less Punishment"

The title of this post is the headline of this recent interesting commentary authored by Kari Hong over at The Crime Report. Here are excerpts: 

In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough. Three reforms are essential to how we convict and punish rapists.

First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons....

The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states. Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.

Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime....

The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew — or deliberately did not care to know — if their advances were consented to. Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex.  Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless.  A new crime of rape by malice would do the same.

Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.

Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.  In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  These numbers should be alarming.  Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.

In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice....

If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists.  It is shorter sentences and actual treatment that succeed over calls to simply lock them up.

November 24, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15)

Wednesday, November 22, 2017

Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?

The question in the title of this post is prompted by this new CNN article headlined "Ex-USA Gymnastics doctor apologizes, pleads guilty to criminal sexual conduct." Here are the basics from the article, with the last quoted sentence and link of particular note for sentencing fans:

Larry Nassar, the former acclaimed USA Gymnastics team doctor, pleaded guilty Wednesday to seven counts of first-degree criminal sexual conduct and admitted in a Michigan court to using his position to sexually abuse underage girls.  Three of the charges applied to victims under 13, and three applied to victims 13 to 15 years old.  Other charges were dismissed or reduced as part of a plea agreement.  All 125 victims who reported assaults to Michigan State Police will be allowed to give victim impact statements at Nassar's sentencing in January, according to the plea deal.

Nassar made a short statement apologizing and saying he was hopeful the community could move forward. "For all those involved, I'm so horribly sorry that this was like a match that turned into a forest fire out of control," he said.  "I have no animosity toward anyone. I just want healing. ... We need to move forward in a sense of growth and healing and I pray (for) that."

Judge Rosemarie Aquilina said Nassar violated the trust of his patients, and she praised the victims for coming forward.... Dozens of women, including several gold-medal winning members of the famed "Fierce Five" team of American gymnasts, have accused Nassar of sexual misconduct in his role as the USA Gymnastics doctor....

In all, Nassar had been charged with 22 counts of first-degree criminal sexual conduct and 11 counts of third-degree criminal sexual conduct at the state level, Megan Hawthorne, deputy press secretary for state Attorney General Bill Schuette, told CNN in July.  Several of the first-degree charges pertained to victims under 13, and all of the state-level charges involve former family friends, gymnasts and patients of Nassar, Hawthorne said.

Separately, Nassar is also awaiting sentencing on federal charges of receiving child pornography, possessing child pornography and a charge that he hid and destroyed evidence in the case.  That hearing is scheduled for Monday.

The linked article at the end here details that Nassar's federal plea from July was to a series of federal counts with a "combined maximum of 60 years of imprisonment." For a host of reasons, I would expect the calculated guideline range for Nassar on his federal child porn charges to be life imprisonment, and I would predict that he will get a richly deserved statutory maximum sentence of 60 years imprisonment at his upcoming federal sentencing.  And because Nassar is in his mid-50s, this means he likely will be getting and serving a functional life sentence in federal court before he is even sentenced in Michigan on the state sex charges that he pleaded guilty to today.

The fact that Nassar likely will already be serving a functional federal life term before being sentenced on state charges does not, in my mind, make state proceedings unimportant or inconsequential, especially given that his victims may only have a chance to have their voices directly heard during the state proceedings.  But I asked the question in the title of this post because I wondered if anyone has a particularized view in a case like this as to whether it matters, symbolically or practically, just how a defendant who commits so many terrible crimes is subject to sentencing and prison service.

November 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tennessee judge formally reprimanded for offering reduced jail time for defendants agreeing to vasectomy or birth control implant

I almost did not believe the story from earlier this year, blogged here, about a Tennessee judge giving 30 days credit off imposed jail time if an inmate were to voluntarily agree to have a vasectomy or birth control implant. But the tale was true, and this new Washington Post piece reports on the latest chapters of this remarkable local imprisonment tale:

When Judge Sam Benningfield of White County, Tenn., offered to shave off jail time for inmates who volunteered for sterilization, a chorus of attorneys, advocates and public officials reacted with horror.

Benningfield said his goal was to break a “vicious cycle” of repeat drug offenders with children. But many argued that the proposal, outlined in a May order, was nothing short of eugenics. Not to mention it seemed unconstitutional on its face. Civil rights lawyers brought legal actions and a local prosecutor told his staff to avoid the judge’s program at all costs.

Now, after the wave of backlash and amid multiple lawsuits, state judicial regulators have formally reprimanded Benningfield for promising 30-day sentence reductions to inmates who agreed to receive vasectomies or birth control implants.

In a letter filed Monday, the Tennessee Board of Judicial Conduct found that Benningfield violated rules regarding judicial independence, integrity and propriety. “You have acknowledged that even though you were trying to accomplish a worthy goal in preventing the birth of substance addicted babies,” the board wrote, “you now realize that this order could unduly coerce inmates into undergoing a surgical procedure which would cause at least a temporary sterilization, and it was therefore improper.”...

The judicial board’s letter says the program is no longer available to any inmate and that Benningfield ran afoul of rules requiring judges to “act at all times in a manner that promotes public confidence.” It noted that Benningfield didn’t object to the reprimand. The letter also reprimanded Benningfield for threatening to end an unrelated house arrest program if a defense attorney refused to withdraw a valid objection regarding a client’s probation....

Several inmates who were jailed when the orders were in effect sued the judge and White County Sheriff Oddie Shoupe, claiming their constitutional rights were violated. The judge and the sheriff have denied liability.

Daniel Horwitz, who represents a group of male inmates, said the judicial board should have gone further than reprimanding Benningfield and instead should have recommended he be removed from the bench. “A public reprimand is serious, but as far as I’m concerned, nothing short of removal is acceptable,” Horwitz told The Post....

Horwitz filed court papers in September on behalf of three male inmates, who called Benningfield’s program “both illegal and profoundly coercive.”  Two of the plaintiffs declined the offer for vasectomies in exchange for a sentence reduction. Another plaintiff agreed to the procedure in hopes of being released in time to watch the birth of his first grandchild. He enrolled in the judge’s early release program but didn’t receive the reduction.

Dozens of their fellow inmates, male and female, agreed to undergo birth control procedures, which can be irreversible in some cases.  Horwitz’s lawsuit describes one female White County inmate who received a hormonal birth control implant and later tried to cut it out of her arm with a razor blade.  She is not listed as a plaintiff....

District Attorney Bryant Dunaway, whose district includes White County and Benningfield’s court, was among those who criticized the sterilization program. Dunaway, who vowed during his election campaign to crack down on repeat offenders, told NewsChannel 5 in July that he had instructed his staff not to take part in Benningfield’s order “in any way.”

“Those decisions are personal in nature,” he said, “and I think that’s just something that the court system should not encourage nor mandate.”

Prior related post:

November 21, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, November 20, 2017

Noting Justice Department's latest ACCA/AEDPA litigation switch in time hoping to avoid nine Justices

Adam Liptak's latest New York Times Sidebar column, headlined "Serving Extra Years in Prison, and the Courthouse Doors Are Closed," does an effective (though necessarily incomplete) job of reviewing the notable recent change in litigation position coming from the Justice Department.  Here are extended highlights from an article highlighting a complicated and important matter of federal habeas procedure:

It is one thing for a new administration to switch sides in a legal dispute.  That is merely unusual.  It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.

In a Supreme Court brief filed last month, the Justice Department tried to have it both ways.  It told the justices that it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court.  For the last 16 years, the Justice Department had taken the opposite view.  It said so in at least 11 Supreme Court briefs.  You might think the Supreme Court should settle things.

But the department urged the justices to refuse to hear an appeal from Dan C. McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed.  It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences.

The administration’s request that the Supreme Court deny review in Mr. McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, a law professor at the University of California, Irvine, and an authority on the complicated web of statutes that govern post-conviction challenges from federal prisoners....

The Justice Department’s litigation two-step also drew a sharp response from Mr. McCarthan’s lawyers, who include Kannon K. Shanmugam, a partner at Williams & Connolly. “There is nothing inherently wrong with a new administration’s changing position on a question before this court — although it is rare on a question involving the administration of the criminal justice system,” Mr. Shanmugam wrote in a brief filed last week.  “But when the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”

Nine federal appeals courts allow the challenges, while two do not.  The new case, McCarthan v. Collins, No. 17-85, started in 2003, when Mr. McCarthan pleaded guilty to a federal gun charge.  That conviction would ordinarily have subjected him to a maximum sentence of 10 years.  But the judge sentenced him to more than 17 years under a federal law that requires longer terms for career criminals.

A career criminal, the law says, is one who has been convicted of at least three serious drug offenses or violent felonies.  One of the convictions that justified Mr. McCarthan’s extra seven years was for escape....  When Mr. McCarthan was sentenced, courts treated all escapes as violent.... [But] “a ‘walkaway’ escape is not a ‘violent felony,’” the [Supreme] court ruled in 2009, six years after Mr. McCarthan was sentenced to extra time based on just such an escape.  He then asked the courts to take another look at his sentence.

In March, the 11th Circuit rejected Mr. McCarthan’s challenge.  The vote was 7 to 4, with the majority saying that Mr. McCarthan had filed his challenge too late under a federal law that places strict limits on habeas corpus petitions.  But the law has an exception, enacted in 1948, for cases in which the ordinary procedure “is inadequate or ineffective to test the legality” of a prisoner’s detention.

The Justice Department had long agreed that the exception applied in cases like Mr. McCarthan’s. It said so in Mr. McCarthan’s own case before the 11th Circuit.  Since the government and Mr. McCarthan agreed that he should at least be allowed the present his challenge, the 11th Circuit appointed a lawyer to argue the opposite position. Then it accepted the appointed lawyer’s argument, which was based on a technical analysis of various statutory provisions.

Only one other federal appeals court has interpreted the 1948 law to bar challenges like Mr. McCarthan’s.  In 2011, the United States Court of Appeals for the 10th Circuit, in Denver, ruled that a prisoner who had pleaded guilty to money laundering in 1999 could not challenge his conviction after the Supreme Court, in a decision issued nearly a decade later, undermined the prosecution’s theory.  The 10th Circuit’s majority opinion was written by Judge Neil M. Gorsuch, who joined the Supreme Court this year.  His 2011 opinion, Professor Litman wrote in January, before his nomination, “makes one wonder what a Justice Gorsuch would mean for criminal justice at the Supreme Court.”

In 2011, the Justice Department criticized Judge Gorsuch’s opinion.  Last month, it endorsed it.  Mr. McCarthan, the department’s brief said, should have argued from the start that his escape was not a violent felony, even though the law at the time was squarely against him.  He should have asked “to have the adverse precedent overturned,” the brief said. It was now too late to raise the question, the brief said.

November 20, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Saturday, November 18, 2017

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Friday, November 17, 2017

"The Criminal Justice System Stalks Black People Like Meek Mill"

The title of this post is the headline of this New York Times op-ed authored by Jay-Z. Here are excerpts:

This month Meek Mill was sentenced to two to four years in prison for violating his probation. #FreeMeek hashtags have sprung up, and hundreds of his fans rallied near City Hall in Philadelphia to protest the ruling.

On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence.  Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.

What’s happening to Meek Mill is just one example of how our criminal justice system entraps and harasses hundreds of thousands of black people every day.  I saw this up close when I was growing up in Brooklyn during the 1970s and 1980s. Instead of a second chance, probation ends up being a land mine, with a random misstep bringing consequences greater than the crime. A person on probation can end up in jail over a technical violation like missing a curfew.

Taxpayers in Philadelphia, Meek Mill’s hometown, will have to spend tens of thousands of dollars each year to keep him locked up, and I bet none of them would tell you his imprisonment is helping to keep them safer. He’s there because of arrests for a parole violation, and because a judge overruled recommendations by a prosecutor and his probation officer that he doesn’t deserve more jail time....

Look at what he’s being punished for now: In March, he was arrested after an altercation in a St. Louis airport. After video of what had actually happened was released, all charges were dropped against Meek. In August, he was arrested for popping a wheelie on a motorcycle on his video set in New York.  Those charges were dismissed after he agreed to attend traffic school. Think about that.  The charges were either dropped or dismissed, but the judge sent him to prison anyway....

[I]t’s time we highlight the random ways people trapped in the criminal justice system are punished every day. The system treats them as a danger to society, consistently monitors and follows them for any minor infraction — with the goal of putting them back in prison.

As of 2015, one-third of the 4.65 million Americans who were on some form of parole or probation were black. Black people are sent to prison for probation and parole violations at much higher rates than white people.  In Pennsylvania, hundreds of thousands of people are on probation or parole.  About half of the people in city jails in Philadelphia are there for probation or parole violations.  We could literally shut down jails if we treated people on parole or probation more fairly....  Probation is a trap and we must fight for Meek and everyone else unjustly sent to prison.

Prior related post:

November 17, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7)

Thursday, November 16, 2017

Could post-Harvey Houston justice be a national model rather than a natural disaster?

The question in the title of this post is prompted by this recent Houston Chronicle article headlined "Prosecutors, attorneys cut 'Harvey deals' in jail basement as flood-damaged courthouse is repaired."  The article reviews various ways the local Houston justice system has had to adjust to the disruptions caused by Hurricane Harvey, and this passage really caught my eye:

[Defense] lawyers said the crush of criminal cases has caused judges and prosecutors to evaluate their dockets with an eye toward getting rid of as many cases as possible. "If the case is something not so serious, you've got a chance at getting a 'Harvey deal,' " said one lawyer, who spoke on condition of anonymity. "But if it's serious, you get delays."

[District Attorney Kim] Ogg confirmed that in the wake of the storm, her top lieutenants reviewed about 600 low-level drug cases in a feverish bid to make plea deals. "We dismissed about 110 of those cases, and we pled about 200 others," Ogg said. "There were about 300 that we couldn't plead."

Ogg said her office sought to expedite state jail felony drug cases, which typically involve possession of small amounts of cocaine or other drugs. "I intend to continue to try to clear our table of cases that produce the least public safety benefit but suck the most resources," she said. "And those are low-level drug cases and those that involve the mentally ill."

Because of the varied disruptions caused by Hurricane Harvey, it likely would be very hard to confidently identify the precise impact of the dismissal and expedited processing of hundreds of low-level drug cases reported here by the DA.  But I genuinely believe it would be beneficial for every chief prosecutor in every jurisdiction, without awaiting a natural disaster, to "try to clear [the] table of cases that produce the least public safety benefit but suck the most resources."  If Houston's post-Harvey experiences prove positive, maybe DA Ogg can and will report on the potential case processing benefits that emerged from the necessities created by an unfortunate disaster.

November 16, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, November 14, 2017

Notable protests and legal appeals as rapper Meek Mill's harsh sentence for probation violation shines light on back-end of justice system

ImagesKMOOADW6Because I do not know Pennsylvania's procedures, I have been a bit unsure how best to cover controversy over the 2-4 year prison sentence given to rapper Meek Mill for violating his probation from a 2008 gun and drug case.  This new CNN article, headlined "Outrage mounts over Meek Mill's prison sentence," provides some useful background on the case while reporting on the protest that took place at Philadelphia's Criminal Justice Center on Monday and highlighting that the "case has sparked outrage not just from the hip-hop community but from activists for criminal justice reform around the nation." 

Now this lengthy new Philadelphia Inquirer article, headlined "Meek Mill appeals sentence, asks city judge Brinkley to step down," provides a useful accounting of legal issues and related stories swirling around this case. Here are excerpts:

Lawyers for imprisoned Philadelphia-born rapper Meek Mill have launched what one lawyer called a “flurry of legal filings” to try to get the 30-year-old hip-hop star released from his 2- to 4-year prison term for violating the terms of his 10-year-old probation.

The first filing Tuesday — a day after hundreds of supporters met outside the city Criminal Justice Center demanding Mill’s release — asked Philadelphia Common Pleas Court Judge Genece E. Brinkley to disqualify herself from further involvement his case and allow a new judge to reconsider Mill’s prison sentence. The 14-page motion, buttressed by 143 pages of court transcripts, maintains that Brinkley, 61, a judge since 1993, had “assumed a non-judicial, essentially prosecutorial role in the revocation process,” and ignored the recommendations of the probation officer and prosecutor, neither of whom sought imprisonment.

The motion contends that Brinkley has gone beyond “the proper bounds of the judicial role, even as supervisor of a probationary sentence. Judge Brinkley has repeatedly offered inappropriate personal and professional advice to the defendant, who had become a successful professional entertainer during the pendency of this case. On some occasions, Judge Brinkley has done so off the record, or on the record while attempting inappropriately to keep that record secret from the defendant and his counsel.”

“Last week’s hearing was a farce,” said defense attorney Brian J. McMonagle. “It was a miscarriage of justice that lacked even the semblance of fairness. Today, we have asked this Judge to step aside so that a fair minded jurist can right this terrible wrong.”

McMonagle said he would file a motion seeking bail for Mill, who was taken into custody following the Nov. 6 hearing before Brinkley for violating his probation from a 2008 drug and gun case. McMonagle said Brinkley has 30 days to respond to the motions filed Tuesday. If she does not respond, Mill’s lawyers can take the case to Superior Court. For Mill, the problem with a Superior Court appeal is that, unless he is allowed bail pending appeal, he could serve his minimum sentence before a decision.

Nor does the Superior Court have a reputation for disturbing lower court sentences in such cases. An article in Sunday’s Inquirer reviewed seven Superior Court appeals of probation violation sentences imposed by Brinkley over the last four years. All were affirmed.

Mill, born Robert Williams, is now in the state prison at Camp Hill near Harrisburg undergoing evaluation before his permanent prison assignment. “He’s holding up OK,” said McMonagle, adding that Mill is in “protective custody” – in a single cell for 23 hours a day with one hour out for exercise.

A motion to reconsider the sentence is the first step in any criminal appeal to the state Superior Court, the intermediate appeals court between the trial courts and the state Supreme Court. Unless she modifies or vacates Mill’s sentence, Brinkley will be required to write an opinion for the appeals court explaining her reasons for sending him to prison.

At the Nov. 6 hearing during which Brinkley sentenced Mill, the veteran judge recounted almost 10 years of court proceedings in which he had violated his probation, and she had sentenced him to short periods in jail and then had extended his probation.

Mill’s most recent “technical violations” were testing positive for the prescription narcotic Percocet earlier this year and two misdemeanor arrests, for an altercation at the St. Louis airport and a traffic violation in Manhattan involving a motorbike.

Brinkley also reminded Mill of the night she actually tried to verify that he was feeding the homeless, part of the community service she ordered. She went to a Center City soup kitchen run by the Broad Street Ministry – and found him instead sorting clothes. “It was only when you realized that I came there to check on you that you decided to serve meals,” Brinkley told the rapper.

Mill’s lawyers contend the judge’s surreptitious visit was also questionable: “Judge Brinkley thereby made herself a fact witness on the question of whether Mr. Williams was in compliance on that occasion, as well as to any statements he may have made. Judge Brinkley then relied on her own version of this incident … among the reasons for imposing a state prison sentence.”

Mill’s lawyers contend that Brinkley also demonstrated a personal bias involving Mill in a private in-chambers meeting during a Feb. 5, 2016, probation-violation hearing. At that hearing, Mill’s then-attorney Frank DeSimone told Brinkley that Mill wanted to discuss his experiences performing community service but “would feel more comfortable relaying some of his thoughts and experiences” to the judge in private....

Joe Tacopina, a lawyer for Mill based in New York City – who was not in the private meeting – has said Brinkley asked Mill last year to record a version of a Boyz II Men ballad, “On Bended Knee,” and to mention the judge in it. Tacopina said Mill laughed off the request and told Brinkley: “I can’t do that. It’s not my music. I don’t sing that stuff. And I don’t do, like, you know, shout-outs to people in my songs.” Brinkley replied, “’OK, suit yourself,’” according to Tacopina.

Tacopina also alleged that Brinkley asked Mill to drop his current management, Jay-Z’s Roc Nation, and to return to Philadelphia-based Charles “Charlie Mack” Alston, who worked with Mill early in his career....

In a related development Tuesday, authorities dismissed a New York Post internet report that the FBI was investigating Brinkley’s role in recommending Mill return to Mack’s management. An FBI spokeswoman in Philadelphia said that, per Justice Department policies, her office could not confirm nor deny the existence of any investigation. However, a federal law enforcement official in the city said that he was not aware of any active probe into the matter.

November 14, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, November 13, 2017

Interesting reviews of accomplishments and challenges in dealing with drug cases in West Virginia

At a time when there is so much talk about reforming how the criminal justice deals with low-level drug offenders, I found both encouraging and depressing this recent local story reporting on recent developments in West Virginia.  The article is headlined "Drug offenses straining already overburdened jail system, prosecutor says," and here are excerpts:

With its jails and prisons already bursting at the seams, Kanawha County Prosecuting Attorney Chuck Miller figures West Virginia is either going to have to come up with another way of handling drug offenders or plan on building more correctional facilities.  Miller recently discussed the available alternative sentencing options with a legislative committee tasked with looking at problems facing the state’s correctional system, points out jails and prisons here are understaffed and overflowing, in large part because drug addiction and the crimes associated with it have spiraled out of control.

How bad is it? According to the Department of Military Affairs & Public Security, 43 percent of the offenders processed at one of the state’s regional jails last year had to go through a detoxification protocol due to substance abuse issues....

It’s not a new problem, either. State leaders long ago realized the prison population was outstripping available resources and in 2012 decided to carve out a data-driven strategy to address it — realizing that, left unchecked, they’d have to spend at least $200 million to build more prison cells plus another $70 million a year in operating costs.  Rather than build more prisons, West Virginia opted to increase its reliance on community-based resources, including drug courts and day report centers.

They’ve not been without success: More than 1,300 adults and juveniles have graduated from drug court, typically an 18-24 month program that helps low-risk offenders.  As of March 2016, West Virginia’s drug courts had graduated 857 and 506 juveniles, in each case just over half of those who’d been accepted in the program.  About 500 more were still active in the program.  According to the West Virginia Supreme Court:

• Recidivism rates for adults after one year was reported to be 1.88 percent, and after two years, 9.4 percent — much lower than the nearly 80 percent recidivism rate for drug offenders who’d been incarcerated. Recidivism for juvenile graduates was said to be 14.6 percent, compared to 55.1 percent for youths in traditional juvenile probation programs.

• Per participant adult drug court program costs — about $7,100 for adults and $6,900 for juveniles — was a fraction of the per diem for housing adult offenders in regional jail (more than $17,000 per year) or prison (more than $28,000 per year).  Likewise, the state said it spent $6,900 to rehabilitate its juvenile drug court alumni — a fraction of what it would have cost to keep them in a secure juvenile facility, a group home or a hospital treatment facility.

Day Report Centers also provide intensive supervision and individualized services, including counseling, to non-violent offenders in lieu of incarceration, helping parolees reintegrate into society and saving millions in jail costs.  Kanawha’s Day Report Center, for example, said its program had saved more than $3 million in jail costs in 2016.  Since its inception in 2005, KDRC has graduated nearly 1,000 clients and had a recidivism rate under 13 percent.

Also in West Virginia’s sentencing toolkit: Pre-trial diversion agreements which allow first-time offenders to avoid jail by obtaining counseling and other treatment, and home confinement, allowing offenders to serve their sentence at home with electronic supervision in lieu of incarceration.  Participants generally must stay within range of a landline telephone and are subject to random drug and alcohol testing....

The programs aren’t without their challenges, however. Pre-trial diversions, for instance, require offenders to undergo treatment, but “availability of detoxification treatment facilities is sparce,” Miller notes.  Likewise, home confinement requires a home and a landline phone.

But, with an opiate epidemic showing no sign of slowing, he said West Virginia is going to have to find answers — even if means building a secure facility dedicated to treating offenders with drug dependencies, one they couldn’t walk away from, or expanding traditional jails and prisons.

“If we have a facility devoted to drug treatment, maybe we’d decrease crowding in our jails and increase our success with people,” Miller said, adding, “We’re not going to prosecute our way out of it and every solution ... requires money.”

November 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Voting intrigue in SCOTUS capital case dissent on latest order list

The Supreme Court wrapped up its formal pre-Thanksgiving public activities toady with the release of this order list.  The list will surely generate news based on the granting of cert in three First Amendment cases, one dealing with abortion issues, one dealing with polling places, and one with some criminal procedure elements.  But sentencing fans, particularly those eager to predict the future of the Supreme Court's capital jurisprudence, will want to give some attention to this lengthy cert denial dissent by Justice Sotomayor in Reeves v. Alabama.  This dissent was joined (only) by Justices Ginsburg and Kagan, and it starts this way:

Petitioner Matthew Reeves was convicted by an Alabama jury of capital murder and sentenced to death. He sought postconviction relief in state court based on, as relevant here, several claims of ineffective assistance of trial and appellate counsel.  Among those claims, Reeves argued that his trial counsel was ineffective for failing to hire an expert to evaluate him for intellectual disability, despite having sought and obtained funding and an appointment order from the state trial court to hire a specific neuropsychologist.  His postconviction counsel subsequently hired that same neuropsychologist, who concluded that Reeves was, in fact, intellectually disabled.  Reeves contended that this and other evidence could have been used during the penalty phase of his trial to establish mitigation.

The Alabama Circuit Court held an evidentiary hearing on Reeves’ postconviction petition, at which Reeves presented substantial evidence regarding his intellectual disability and his counsel’s performance.  He did not, however, call his trial or appellate counsel to testify.  The court denied the petition, and the Alabama Court of Criminal Appeals affirmed. In doing so, the Court of Criminal Appeals explained that a petitioner seeking postconviction relief on the basis of ineffective assistance of counsel must question his counsel about his reasoning and actions.  Without considering the extensive record evidence before it regarding Reeves’ counsel’s performance or giving any explanation as to why that evidence did not prove that his counsel’s actions were unreasonable, the Court of Criminal Appeals held that Reeves’ failure to call his attorneys to testify was fatal to his claims of ineffective assistance of counsel.  The Alabama Supreme Court denied review.

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffectiveassistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule.  Instead, the dispute here is whether the Alabama Court of Criminal Appeals in fact imposed such a rule in this case.  I believe it plainly did so.  For that reason, I respectfully dissent from the denial of certiorari.

After this start, Justice Sotomayor goes on for 10+ pages to provide great detail on the proceedings below and the errors she sees therein.  Her dissent concludes with a call for a summary reversal and remand "so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance."  This concluding recommendation, along with length of the dissent, leads me to wonder if it was drafted with the hope that there would be five or more votes to send this case back to the Alabama courts given that, as Justice Sotomayor explains, Alabama itself "does not attempt to defend the Court of Criminal Appeals’ rule on its merits."

Of course, the issuance of this dissent shows that Justice Sotomayor could not get five or more votes to send this case back to the Alabama courts.  But, as SCOTUS fans know, only four votes are needed to grant certiorari, and Justice Breyer would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.  I am inclined to guess that Justice Breyer decided to issue a so-called "defensive denial" vote: as explained here, Justice Breyer's vote in Reeves may involve the "strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law."

Because I am not a SCOTUS procedure guru, I am not going to spend too much time speculating about what the voting dynamics might reveal in Reeves.  But in the wake of his Glossip opinion and other subsequent comments and votes, some have been coming to believe that Justice Breyer would now vote in favor of a capital defendant in any and every close or tough case.  His vote to deny cert in Reeves suggests that, in deciding how to resolve capital cert petitions, he is still concerned with matters other than just how he thinks he should resolve each and every particular capital case that comes before him.

November 13, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, November 08, 2017

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, November 07, 2017

Interesting account of "Five myths about white collar crime"

I just saw this notable recent commentary authored by Nicolas Bourtin, a former federal prosecutor, published in the Washington Post outlook section. Here is how the lengthy commentary starts along with the myth headings and the section most focused on sentencing:

Bankers and government officials continue to feature prominently on our newspapers’ front pages — and not in a good way. Since the financial crisis of 2008, a string of political and corporate scandals has played out in our political and financial centers, and recent investigations of people close to President Trump, including Paul Manafort and Rick Gates, have produced indictments for money laundering and tax fraud. Corporate malfeasance, corruption and tax fraud are shrouded in misconceptions. Here are five enduring myths about white-collar crime.

MYTH NO. 1: Prosecutors fear prosecuting powerful defendants....

MYTH NO. 2 White-collar defendants never serve real time.

In the wake of the financial crisis, publications such as Fortune and the Nation have sought to answer why its architects don’t do hard time for their crimes. “Why does the Justice Department appear to have given up on putting white-collar criminals in jail?” Fortune asked. When academics began studying the subject in the 1970s, they noted that federal judges were typically lenient toward white-collar offenders.

Those days are over. Judicial discretion in sentencing was greatly limited by the adoption of the Federal Sentencing Guidelines in 1987, whose penalties for fraud were further enhanced after the Enron scandal broke in 2001. And although the Supreme Court held in 2005 that the guidelines were advisory and no longer mandatory for judges, sentences for white-collar defendants have been getting harsher, not more lenient.

According to the U.S. Sentencing Commission’s 2013 Report on Sentencing Trends, nearly 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012. In 1985, by comparison, the average sentence for white-collar crimes was just 29 months.

MYTH NO. 3 Trump’s administration won’t enforce anti-corruption laws....

MYTH NO. 4 No one went to prison as a result of the financial crisis....

MYTH NO. 5 Financial crime is the same as robbery or theft....

November 7, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Monday, November 06, 2017

A number of executions in a number of states generating a number of notable stories and commentary

As detailed in this DPIC listing of upcoming executions, there are scheduled five executions in five different states over the next 10 days.  As is always the reality, each of these cases involve notable stories that can generate notable news.  Here are a few recent stories and commentaries about some of the cases in some of these states (in the order of planned executions):

In the case from Texas: "Mexico says upcoming U.S. execution of national is 'illegal'"

In the case from Arkansas: "Arkansas Death Row Inmate Wants Brain Examined If Executed"

In the case from Nevada: "Against a 'Cruel and Unusual' Death: Nevada must not allow a death-row inmate to 'volunteer' for execution by fentanyl and other drugs."

In the case from Ohio: "Ohio death row inmate wants firing squad as execution alternative"

November 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Two notable summary reversals from SCOTUS after circuits failed, yet again, to properly follow AEDPA

The US Supreme Court this morning released this order list which does not grant cert in any new cases but does concludes with two notable summary reversals both of which result from circuit courts failing to follow properly the commands of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The longer per curiam ruling (without dissent) comes in Kernan v. Cuero, No. 16-1468 (S. Ct. Nov 6, 2017) (available here), which gets started this way:

The Antiterrorism and Effective Death Penalty Act of1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to,or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, MichaelCuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

The question here is whether the state-court decision “involved an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States.” Ibid. Did our prior decisions (1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea? Because no decision from this Court clearly establishes that a state court must choose the first alternative, we reverse the Ninth Circuit’s decision.

The other per curiam ruling comes in Dunn v. Madison, No. 17-193 (S. Ct. Nov 6, 2017) (available here), includes these passages:

Neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed.

Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error“beyond any possibility for fairminded disagreement.” Richter, supra, at 103.  Under that deferential standard, Madison’s claim to federal habeas relief must fail. We express no view on the merits of the underlying question outside of the AEDPA context.

Notably, Justice Ginsburg penned this brief concurrence in Dunn that was joined by Justices Breyer and Sotomayor:

The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the Court’s per curiam disposition of this case.

And Justice Breyer also added a concurrence in Dunn to note that the "case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution." Notably, no other Justice joined this concurrence by Justice Breyer.

November 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Sunday, November 05, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

Andrew McCarthy has this notable recent National Review commentary under this amusing headline/subheadline: "Your Sentencing Advice Isn’t Helpful; Bergdahl is to loyalty as Trump is to tact."  Though the headline suggests the piece is mostly about taking Prez Trump to task, it actually focuses effectively on just how the battle facing federal prosecutors in the Saipov case was made a bit harder by the Prez.  Here is part of McCarthy's analysis:

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

In the end, I’m pretty sure defense motions to throw out any capital charges will be denied.  But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher. Make no mistake: They already have an uphill battle on their hands. 

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.)  But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment.  If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple. 

The SDNY prosecutors are a clever lot.  In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings.  The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B).  They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS).  Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.  The government has a good argument.  Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.

All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear.  I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts.  When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.  But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues).  The prosecutors’ margin for error, already thin in a death case, will narrow all the more.  Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

Prior related posts:

November 5, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

Facebook-seoMy local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?

November 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, November 03, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, November 02, 2017

Sex offender registration laws meet Apprendi procedural rights in new Pennsylvania ruling

A helpful reader altered me to an interesting new ruling from appellate court in the Commonwealth of Pennsylvania, Commonwealth v. Butler, NO. J-A21024-17 (Pa. Supp. Ct. App. Oct. 31, 2017) (available here). Folks concerned about the reach of sex offender registration laws and fans of the Supreme Court's Apprendi line of jurisprudence will both want to check out this opinion.  Here is how it starts and a key part of the ruling:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016.  In this case, we are constrained by our Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework for designating a convicted defendant a Sexually Violent Predator (“SVP”), violates the federal and state constitutions. As such, we are compelled to reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements....

Apprendi and Alleyne apply to all types of punishment, not just imprisonment.  See S. Union Co. v. United States, 567 U.S. 343, 346-360 (2012).  Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.  See Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007)....

We recognize that our Supreme Court did not consider the ramifications of its decision in Muniz with respect to individuals designated as SVPs for crimes committed after SORNA’s effective date.  Nonetheless, our Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case.  In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.  Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP.  Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.  Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

As a fan of Apprendi rights who has long been concerned that courts sometimes work too hard to limit their logical reach, I am pleased to see this state court come to a seemingly sound conclusion in a controversial setting.  In addition, I get a kick out of imagining, if now asked what case applied Apprendi rights to the SORNA setting, saying "the Butler did it."

November 2, 2017 in Blakely in the States, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Tuesday, October 31, 2017

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, October 30, 2017

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (24)

Sunday, October 29, 2017

"A Culture that is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases"

The title of this post is the title of this notable new empirical paper authored by Jon Gould and Kenneth Leon. Here is the abstract:

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence.  Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory.  This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence.

Using frequentist and Bayesian methods — supplemented with expert interviews — we empirically assess the processes determining the total allocation of defense resources in federal death penalty trials at the peak of the federal death penalty — between 1998 and 2004. Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence.  Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.  Ultimately, we argue for a reconceptualization of extralegal influences and the relationship between local legal culture and capital case outcomes.

October 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, October 27, 2017

Expressing concerns about how risk assessment algorithms learn

This New York Times op-ed, headlined "When an Algorithm Helps Send You to Prison," is authored by Ellora Thadaney Israni, a law student and former software engineer at Facebook. In the course of covering now familiar ground in the debate over the use of risk assessment tools at sentencing, the piece adds some points about how these tools may evolve and soundly urges more transparency in their creation and development:

Machine learning algorithms often work on a feedback loop.  If they are not constantly retrained, they “lean in” to the assumed correctness of their initial determinations, drifting away from both reality and fairness.  As a former Silicon Valley software engineer, I saw this time and again: Google’s image classification algorithms mistakenly labeling black people as gorillas, or Microsoft’s Twitter bot immediately becoming a “racist jerk.”...

With transparency and accountability, algorithms in the criminal justice system do have potential for good.  For example, New Jersey used a risk assessment program known as the Public Safety Assessment to reform its bail system this year, leading to a 16 percent decrease in its pre-trial jail population.  The same algorithm helped Lucas County, Ohio double the number of pre-trial releases without bail, and cut pre-trial crime in half.  But that program’s functioning was detailed in a published report, allowing those with subject-matter expertise to confirm that morally troubling (and constitutionally impermissible) variables — such as race, gender and variables that could proxy the two (for example, ZIP code) — were not being considered.

For now, the only people with visibility into COMPAS’s functioning are its programmers, who are in many ways less equipped than judges to deliver justice.  Judges have legal training, are bound by ethical oaths, and must account for not only their decisions but also their reasoning in published opinions.  Programmers lack each of these safeguards. Computers may be intelligent, but they are not wise.  Everything they know, we taught them, and we taught them our biases.  They are not going to un-learn them without transparency and corrective action by humans.

October 27, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (1)

"How to Assess Real World Application of a Capital Sentencing Statute: A Response to Professor Chad Flanders's Comment"

The title of this post is the title of this new paper by John Mills now available via SSRN. As the title indicates, this piece is a response to a recent article by Chad Flanders, blogged here, about capital sentencing procedures. Here is the abstract:

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope.  To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst.  Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point.  This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract.  This response focuses on Arizona’s capital sentencing regime to illustrate the importance of understanding the real world operation of the law and discusses the well-established basis in law and policy for relying on empirical studies in support of narrowing claims.

Prior related post:

October 27, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:


Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)