Monday, May 23, 2016

SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"

The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages: 

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:

Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial.  Time and again, the state courts have rejected that claim.  The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989).  A state habeas court rejected it in 2013. App. 175–176, 192–196.  And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.

Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor.  It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry.  I respectfully dissent.

May 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases.  But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana.  The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery.  The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed.  In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole.  It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.  In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same).  There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.)  Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.”  Roper, 543 U.S., at 571.  As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

May 23, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

ProPublica takes deep dive to idenitfy statistical biases in risk assessment software

Propublica-logoThe fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools.  The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:

[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom.  In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” 

The sentencing commission did not, however, launch a study of risk scores.  So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.   The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

  • The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
  • White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.  In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”

Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)

May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, May 22, 2016

"Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department."

Andrew-HanenThe sentence that serves as the title of this post comes from this remarkable 28-page "Memorandum Opinion and Order" entered late last week by US District Judge Andrew Hanen as part of the litigation brought by Texas and others states to challenge President Obama's DAPA and DACA immigration directives.  Though I have not followed this "civil" litigation closely, this order certainly heightens my concerns that in federal criminal cases some DOJ lawyers embrace an "ends-justify-the-means" approach to litigation on behalf of the federal government.  Then again, the (sure-to-be-appealed) requirements that Judge Hanen has for DOJ appearing at the end of this remarkable opinion perhaps should make me more hopeful concerning the future work of DOJ lawyers in all settings:

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice....

The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021). The decision of the lawyers who apparently determined that these three-year renewals under the 2014 DHS Directive were not covered by the Plaintiff States’ pleadings was clearly unreasonable. The conduct of the lawyers who then covered up this decision was even worse. Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again. Specifically, this report should include what steps the Attorney General is taking to ensure that the lawyers of the Justice Department will not, despite what court documents may portend or what a court may order, unilaterally decide what is “material” and “relevant” in a lawsuit and then misrepresent that decision to a Court. Stated differently, the Attorney General is also hereby ordered to report what steps she is taking to ensure that, if Justice Department lawyers make such an internal decision without approval from the applicable court, the Justice Department trial lawyers tell the truth—the entire truth—about those decisions to the court and opposing counsel.

Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.” Office of Professional Responsibility, DEP’T OF JUSTICE, https://www.justice.gov/opr (last visited May 17, 2016). Its lawyers in this case did not meet the most basic expectations. [FN 18] The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.

[FN 18] Other courts have noticed these problems as well. Just in the last six months, both the Fifth Circuit and the Sixth Circuit have questioned the conduct of those employed by the Department of Justice. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015); In re United States, No. 15-3793, 2016 WL 1105077 (6th Cir. Mar. 22, 2016). The Fifth Circuit went further and suggested that not only was there misleading conduct, but the conduct was followed by an inadequate investigation and a cover-up. These are just two of an ever-growing number of opinions that demonstrate the lack of ethical awareness and/or compliance by some at the Department of Justice.

May 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, May 21, 2016

"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"

The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:

This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes.  Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes.  The difference is significant.  The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime.  The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.

May 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, May 19, 2016

Can anyone forcefully assert that a major sentence enhancement based on acquitted conduct (or even uncharged conduct) is "fundamentally fair"?

The question in the title of this post is prompted by a few notable sentences at the very end of the (otherwise not-especially-notable) majority opinion from the Supreme Court today in Betterman v. Montana, No. 14-1457 (S. Ct. May 19, 2016) (available here).  Specifically, after holding that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing, the  Court in Betterman has this to say about the possible role of the "more pliable standard" that relates to due process rights: "After conviction, a defendant’s due process right to liberty, while diminished, is still present.  He retains an interest in a sentencing proceeding that is fundamentally fair."

As regular readers know, in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the Sixth Amendment's jury trial right must create a constitutional limit of some sort on judicially-imposed major sentence enhancements that are based on so-called acquitted conduct.  (My views here have most recently be articulated in full via this (unsuccessful) SCOTUS amicus brief in support of cert from a few years ago).  But, as Betterman helps to highlight, even if and when a defendant cannot prevail on a Sixth Amendment claim at sentencing, he can always fall back on a Fifth/Fourteenth Amendment Due Process claim.  And, of particular linguistic importance, if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or "interest") "in a sentencing proceeding that is fundamentally fair," perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.

I know this post may be just wishful thinking that the last phrase about due process quoted above might be given some real constitutional bite by SCOTUS or lower courts in days and months ahead.  But hey, what fun is life without at least a little wishful thinking.

May 19, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)

The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:

1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.

2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.

Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution?  That is the sole question this case presents.  We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.  For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.  Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim.  He did not preserve a due process challenge.  See Tr. of Oral Arg. 19.  We, therefore, confine this opinion to his Sixth Amendment challenge.

Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:

[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process.  See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).

May 19, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?

This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles.  The piece's full headline highlights its themes:  "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics."  Here is how the piece started (with links from the original):

Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.

But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.

Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.

Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.

Similar suits are proceeding in Iowa, Michigan, Florida, Virginia and North Carolina, where a judge heard oral arguments last week.

“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”

A few of many prior related posts:

May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Are Prosecutors the Key to Justice Reform?: Given their autonomy — only if they want to be."

The title of this post is the headline of this lengthy Atlantic article which effectively highlights how little we know about the work of prosecutors and how critical they are to the operation and impact of criminal justice systems. I recommend the are piece in full, and here are snippets:

A consensus is building around the need to seriously rethink the role of the prosecutor in the administration of justice. Power dynamics are unbalanced, sentencing guidelines are outdated, and old-fashioned human biases persist.  And prosecutors — singularly independent agents in a justice system roiling in turmoil — have been facing growing criticism and public distrust for some time, and that disapproval is about to hit a tipping point.  It’s time to curtail the power long held by these officers of the court as they promote justice, ensure fairness, and enhance public safety....

John Jay College of Criminal Justice recently announced its new Institute for Innovation in Prosecution, headed by former prosecutor Meg Reiss.  A joint project from the Manhattan District Attorney’s Office and the college, the New York City-based institute will “develop programs designed to support innovation in the role of prosecutors in the American justice system.”  Reiss, a jurist with two decades of experience, has great faith in what her former colleagues can accomplish.  She also owns up to the negative perceptions typically tied to the role.  “There’s a lot of mystery about what actually goes on in a prosecutor’s office, so people have never been able to really evaluate it and see exactly what it is they’re doing,” she said....

Reiss said part of the solution is giving prosecutors better tools with which to do their jobs — with “a lot more discretion and creativity.”  She said some crimes should fall into categories like “alternatives to prosecution” and “diversion programs.”  “Of course, you address violent crime appropriately, and no one’s saying that you shouldn’t,” Reiss said.  “But I think everything needs to be carefully evaluated and understood.  There isn’t a broad stroke that you use for every type of crime or every type of person.” She cites the intelligence-driven prosecution model out of the Manhattan district attorney’s office as a good place to start: “DA Cyrus Vance is holding a symposium, one of many they’ve done already, on a crime-strategies unit that he has set up in his office, teaching other officers around the country how to do the same.”

It might take that kind of colleague-to-colleague approach to change the prosecutorial culture in the United States. “The bottom line is people came to be prosecutors because they really wanted to ensure fairness and increase public safety,” Reiss said.  “They have a real moment at this time to step up and make a big change, to really lead in this effort, to be really innovative and forthright in their intentions, to reduce mass incarceration, to address racial disparity in the system, to look for alternatives to oppressive sanctions.  We missed so many things and now is the moment.”

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

California voters in November to have "mend it or end it" death penalty initiative options

As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:

Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.

No one has been executed in California in a decade because of ongoing legal challenges.  Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978.  Far more condemned inmates have died of natural causes or suicide.

Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families.  The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.

Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer.  By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case....  Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....

Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke.  Each side needs nearly 366,000 valid signatures to qualify for the ballot.  "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."

A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.

May 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 18, 2016

"Jurisdiction and Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied"

The title of this post is the title of this notable new and timely scholarship authored by Leah Litman and Luke Beasley. Here are excerpts from the start of the piece which highlights its themes and timeliness: 

This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review).  AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

Take, for example, the recent litigation about whether prisoners with “Johnson” claims may be resentenced. Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. ACCA imposed a mandatory fifteen-year term of imprisonment on prisoners; but without ACCA, the statutory maximum term of imprisonment for these prisoners is ten years.  Johnson therefore means these prisoners could lawfully be sentenced to no more than ten years in prison.  Prisoners whose ACCA sentences depended on the residual clause are now seeking to have their 15-year sentences reduced to the lawful 10 years.  But three courts of appeal held that AEDPA bars prisoners with Johnson claims from obtaining relief if they have already filed one petition for post-conviction review, because the prisoners do not satisfy AEDPA’s conditions for filing a successive petition for postconviction review....

Part I describes AEDPA’s restrictions on post-conviction petitions that are preventing prisoners with meritorious claims from obtaining relief, and how the United States is attempting to bypass those restrictions by waiving the argument that AEDPA’s restrictions are not satisfied.  Part II argues that AEDPA’s restrictions on filing successive petitions for post-conviction review are not jurisdictional, and that courts may therefore accept the government’s waiver and allow prisoners to obtain relief on their claims even if prisoners do not satisfy AEDPA’s preconditions for filing successive petitions for post-conviction review.

May 18, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Sentencing phase: did heredity play part in serial killer’s crimes?"

It is often said that the sins of the father should not befall the son, but an on-going capital case in Ohio suggests that at least one defendant is hoping the sins of his father and grandfather and great-grandfather might help keep him off death row. The title of this post is the headline of this local story which provides these details:

Was heredity to blame for the violent crimes of convicted serial killer, Michael Madison? A Cuyahoga County jury was presented with that possibility in the courtroom of Judge Nancy McDonnell on Tuesday.

Dr. Mark Cunningham, a clinical and forensic psychologist from the state of Washington, testified heredity was an aspect of sexual offending. "There is patterning within these family systems,” he said, “They found that having a brother or father who had been convicted of a sexual offense increased the odds of being convicted of a sexual offense four to five fold.”

Cunningham prepared a diagram showing the history of Madison’s family dating back to his great-grandfather. The chart illustrated how the serial killer’s relatives preyed on each other physically and sexually, including their own children. Social Service records and interviews with Madison’s family revealed he was abused for years by his mother and her boyfriends.

"The way that he was treated is the template of how he then goes about interacting with others throughout his life,” said Cunningham, “It's a core principle that the FBI's behavioral science unit identified as they looked at the histories of sexual homicide offenders and observed that the quality of attachments to parents and other members of the family during childhood is central to how the child will relate to and value other members of society.”

The 37-year-old was convicted of raping and murdering Angela Deskins, Shetisha Sheeley and Shirellda Terry, all of East Cleveland. Their bodies were found near his East Cleveland apartment in July of 2013.

May 18, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, May 17, 2016

Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

May 17, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, May 16, 2016

SCOTUS back to work with no new cert grants, punting, and a per curiam AEDPA summary reversal

The Supreme Court this morning issued orders and a number of opinions after returning from a few weeks off, and the lead story seems to be primarily what the Justices did not do: the Court did not grant certiorari on any new cases, did not conclusively resolve (but essentially punted issues back to lower courts) a couple high-profile argued cases, and did not split 4-4 (or even 5-3) on any merits opinions.

The one thing the Court did do that might interest criminal justice fans involves a per curiam ruling in a federal habeas case coming from the Ninth Circuit. The ruling in Kernan v. Hinojosa, No. 15-833 (S. Ct. May 16, 2016) (available here), gets started this way:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to “exhaus[t] the remedies available in the courts of the State.” 28 U. S. C. §2254(b)(1)(A). If the state courts adjudicate the prisoner’s federal claim “on the merits,” §2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” §2254(d)(1), or “was based on an unreasonable determination of the facts,” §2254(d)(2). The Ninth Circuit in this case decided that the Supreme Court of California’s summary denial of a habeas petition was not “on the merits,” and therefore AEDPA’s deferential-review provisions did not apply. We summarily reverse.

Notably, Justice Sotomayor issued a dissenting opinion, which Justice Ginsburg joined, to explain why she thought the Ninth Circuit was in the right when refusing to apply AEDPA’s deferential-review provisions in this case.

May 16, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery

At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:

Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.

Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago.  The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....

The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.

The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases.  In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.”  Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”

Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions.  But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....

Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share.  In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act.  “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.

Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up.  “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.

For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether.  “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”

Prior related post with my scholarly take on Montgomery:

May 16, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, May 15, 2016

Is it fair for me to worry that drug war distractions contribute to "a revolving door for violent offenders" in DC?

The question in the title of this post is prompted by this lengthy new Washington Post article headlined "How an accused rapist kept getting second chances from the D.C. justice system," which is the "first installment in a series that will examine issues related to repeat violent offenders in the District of Columbia."  I am pleased to see the Post giving attention to how repeat violent offenders manage to avoid serious punishments, but I hope that the series will get around to exploring my enduring concern that repeat violent offenders can too often and too readily exploit cracks within any justice system overworked and overloaded from treating drug problems as primarily criminal justice concerns.  These enduring concerns aside, here are excerpts from the Post's story that serve as an introduction to the troubling tale that follows:

The 40-year-old woman, described in court papers as 5 feet tall and 100 pounds, suffered fractures in her eye socket and cheekbone.  The alleged perpetrator, 21-year-old Antwon Durrell Pitt, had an extensive criminal history, including eight arrests in four years and a robbery conviction. Three times, he was sentenced under laws designed to promote leniency and second chances for inexperienced adult offenders. In two of those cases, he was sentenced under the District’s Youth Rehabilitation Act, a 1980s-era law aimed at “deserving” offenders under the age of 22.

Pitt’s case shows that such laws, combined with lax enforcement by key federal agencies, can give many chances to violent offenders despite repeated criminal behavior and the failure to abide by terms of release, according to a Washington Post review of court records, transcripts and probation reports.

The D.C. criminal justice system relies on a mix of federal agencies and D.C. judges to swiftly intervene and communicate vital information to protect the public from violent offenders. In the crucial weeks before the rape, a D.C. Superior Court magistrate judge and two federal agencies — the Court Services and Offender Supervision Agency (CSOSA) and the U.S. Parole Commission — failed to work together to take Pitt off the streets.

Pitt’s behavior raised many red flags, indicating escalating risk. Just out of prison last summer after serving a robbery sentence, Pitt did not report for some of his court-ordered drug testing and anger management sessions. He did not keep in contact with his supervision officer. And in a final act of defiance, Pitt cut off the GPS monitoring bracelet affixed to his ankle and let the battery run dead. He was completely off the grid.

CSOSA, the federal agency charged with watching D.C. offenders released from prison, did not request a warrant for Pitt’s arrest for 15 days after losing contact with him. The Parole Commission waited a week after getting that request before forwarding it to law enforcement. And the magistrate judge denied a prosecutor’s request to keep Pitt behind bars, despite a troubling report from the Pretrial Services Agency. “No conditions or combination of conditions can reasonably assure the defendant’s appearance or safety to the community,” said the report that was given to magistrate William Nooter.

The District’s Youth Rehabilitation Act was passed in 1985 to give youthful adult offenders a chance to have their records wiped clean from public view if they successfully complete their sentences, even those who commit violent crimes, with the exception of murder and a second crime of violence while armed....

At a time when the Obama administration and Congress are working to ease “mandatory minimum” sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African Americans, D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets. The District, for example, has seen a near doubling in the percentage of homicide suspects with prior gun-related arrests.  “Sometimes, we just scratch our heads,” D.C. police Chief Cathy L. Lanier said. “We feel like there’s a revolving door for violent offenders. It’s very frustrating for us because we see the victim, and we see the impact on the victim.”

May 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (9)

Thursday, May 12, 2016

Can and should Missouri, after completing its last execution for a while, send any extra execution drugs to other needy states?

The question in the title of this post is prompted by this AP article about the first and likely last execution in Missouri this year.  The piece is headlined "Missouri man put to death for killing deputy, 2 others; could be last execution for some time," and here are the basics:

A man who killed two people in a drug dispute and a sheriff’s deputy in a subsequent shootout was put to death Wednesday in what could be Missouri’s last execution for some time.

Earl Forrest, 66, went to the home of Harriett Smith in December 2002 and demanded that she fulfill her promise to buy a lawn mower and mobile home for him in exchange for introducing her to a source for methamphetamine. During an argument, Forrest shot Smith and Michael Wells, who was visiting Smith’s home. Forrest later fatally shot Dent County Sheriff’s Deputy Joann Barnes after she arrived at Forrest’s home.

Missouri has executed 19 men since November 2013. But the remaining 25 death row inmates either have appeals still pending or other reasons they will not face imminent execution. Forrest’s fate was sealed hours before his punishment when the U.S. Supreme Court refused to halt the execution and Missouri Gov. Jay Nixon, a Democrat, turned down a clemency request.

According to court documents, Forrest had been drinking when he went to Smith’s home in the southern Missouri town of Salem. Wells was visiting Smith at the time. An argument ensued, and Forrest shot Wells in the face. He shot Smith six times and took a lockbox full of meth valued at $25,000. When police converged on Forrest’s home, he fatally shot Barnes and injured Dent County Sheriff Bob Wofford, according to court documents. Forrest was also injured in the exchange of gunfire, along with his girlfriend, Angela Gamblin.

Missouri has been one of the most prolific states for executions in recent years, second only to Texas. The state has executed 19 prisoners since November 2013, including six last year. Forrest’s execution was the first in 2016.

Missouri’s death row population is dwindling. Robert Dunham, executive director of the Death Penalty Information Center in Washington, said juries today are less likely to opt for capital punishment, in part because of greater awareness of how mental illness sometimes factors in violent crime. Just 49 people were sentenced to death nationally last year, the fewest since the U.S. Supreme Court reinstated the death penalty as a possible punishment in 1976. No one was sentenced to death in Missouri in 2014 or 2015, Dunham said. “As these executions take place, fewer and fewer people are being sentenced to death, so the death penalty is withering on the other end,” Dunham said.

None of the 25 other men remaining on Missouri’s death row face imminent execution.  Sixteen have yet to exhaust court appeals and aren’t likely to do so soon.  Execution is on hold for nine others.  Two were declared mentally unfit for execution. Two were granted stays because of medical conditions that could cause painful deaths from injections. Two had sentences set aside by the courts due to trial attorney errors.  One inmate was granted a stay while his innocence claim is reviewed. One case was sent back to a lower court to consider an appeal.

And in one unusual case, inmate William Boliek was granted a stay by Democratic Gov. Mel Carnahan in 1997. The case wasn’t resolved before Carnahan died in a 2000 plane crash, and a court determined that only Carnahan could overturn the stay. Nixon’s office has said Boliek will not be executed.

As regular readers may recall and as Ohio capital lawyers know well, while Missouri has had the lethal injection drugs needed to carry out nearly 20 executions in the last few years, the Buckeye state has more than two dozen execution scheduled that have been persistently delayed because the state cannot seem to get its hands on any lethal injection drugs.  I do not know where Mizzou gets its lethal injection drugs or whether it has some additional drugs on hand now without any executions scheduled for the foreseeable future.  But I do know that a functioning legal system with large percentages of voters and elected officials supporting a functioning death penalty ought to be able to figure out some way for nearby states to help each other out in this arena.

I bring this up because I have long believed in the aphorism "where there's a will, there's a way."  And thus, I have also come to believe that the main reason Ohio has not been able to figure out how to secure needed execution drugs (while many other states seem to have these drugs) is because there just is not the political will to fix the state's enduring capital punishment administrative problems.

May 12, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2)

Wednesday, May 11, 2016

"Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. Here are some excerpts from the start of the report:

In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S.  Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent.  One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off.  With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court.

While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years.  Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond.  This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.

We find that most people who are unable to meet bail fall within the poorest third of society.  Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages.  People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts....

Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity.  Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails.  Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.

May 11, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery

A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:

This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment.  This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18.  Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.

Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass.  First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460.  Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively.  See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014).  And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.

The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013.  That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller.  In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.

May 11, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?

The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:

In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.

Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....

In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.

Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....

The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.

Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.

The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.

A few prior related post:

May 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, May 10, 2016

Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release

A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:

Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography.  One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged.  The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities.  Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense.  Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision.  The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay.  We reverse on the Fifth Amendment issue.

May 10, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

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

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.

Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood.  Part II addresses the reality of petition or perish created by Bounds and Casey.  Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated.  Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

May 10, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Monday, May 09, 2016

Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures

As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:

Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”

Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.

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

Sunday, May 08, 2016

Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been

Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years.  The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:

In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.

Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.

From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.

The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...

On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.

“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...

An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.

Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.

An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....

Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War.  With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.

This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year.  Here is how it concludes:

If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

May 8, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops"

The title of this post is the title of this notable new paper authored by Stephanos Bibas now available via SSRN. here is the abstract:

American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes.  But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around.

This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards.  Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas.  To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences.  Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation.  To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.

May 8, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, May 07, 2016

An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed

Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases.  Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.

As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole.  But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution.  And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.  For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....

The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements.  Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not.  Attributing such an intended result makes no sense given the purpose of the law.

Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve.  Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.

The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves.  Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary.  Absent strong evidence the legislature intended this result, it should not be attributed to them.

The new act should apply to any cases remanded for resentencing.

May 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, May 06, 2016

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

More evidence of a failed drug war: foot soldier always high while fighting

This recent AP article, headlined "Reports: Chemist Who Worked on Drug Cases Was Usually High," provides yet another reason why I see the so-called war on drugs to be an abject failure. Here are the details:

Investigators say a former chemist who tested drugs for Massachusetts police departments was high almost every day she went to work for eight years, potentially putting thousands of criminal convictions in jeopardy.

Sonja Farak, who worked for an Amherst lab that tested drug samples for police, was high on methamphetamines, ketamine, cocaine, LSD and other drugs during most of her time there, even when she testified in court, according to a state investigative report released Tuesday. Farak worked at the lab between 2005 and 2013.

Cyndi Roy Gonzalez, a spokeswoman for Attorney General Maura Healey, said the information gathered about Farak "will no doubt have implications for many cases," but it is unclear just how many. She said it will be up to prosecutors, defense attorneys and the courts to determine the full scope of cases affected by Farak's misconduct. "We are deeply concerned whenever the integrity of the justice system is called into question or compromised," she said.

One defense attorney told the Boston Herald that Farak handled about 30,000 cases during her career. "This is a statewide scandal, and I think it's going to take an enormous toll on the system," attorney Luke Ryan said.

Farak's case is unrelated to the case of Annie Dookhan, who worked at a state drug lab in Boston. Dookhan was sentenced in November 2013 to at least three years in prison after pleading guilty to faking test results in criminal cases that jeopardized thousands of convictions.

The American Civil Liberties Union of Massachusetts said the number of criminal cases affected by Farak's misconduct could rival the approximately 40,000 cases thrown into question by Dookhan's actions. "It's now beyond doubt that the drug war in Massachusetts during the Dookhan-Farak era was built on a foundation of falsified evidence," said Matthew Segal, the ACLU's legal director.

Segal said he doesn't have an estimate of how many cases could be challenged, but said prosecutors who got convictions using drug samples she tested "have an obligation to identify and notify everyone who might have been denied due process" as a result of Farak's actions. Segal said that because Farak admitted ingesting lab "standards" — drug samples used as benchmarks to test against substances submitted by police for testing — all cases that went through the lab should be re-examined.

Last year, the Supreme Judicial Court of Massachusetts ordered an investigation into the timing and scope of Farak's misconduct. Healey's office conducted the investigation. Many of the shocking details came from Farak's own grand jury testimony, including that she once smoked crack before a 2012 state police accreditation inspection of the now-closed lab. Farak also testified that she manufactured crack cocaine for her personal use in the lab.

Farak, 37, of Northampton, pleaded guilty to tampering with evidence, stealing cocaine from the lab and unlawful possession in January 2014 and was sentenced to 18 months behind bars and five years of probation. She served her sentence and has been released from prison....

Gov. Charlie Baker said the state will likely have to allocate more money to deal with the Farak scandal. In the Dookhan case, the state Legislature authorized up to $30 million to cover costs incurred by the court system, prosecutors, public defenders and other state agencies. "We certainly believe we are going to have a big responsibility to work with the courts and with others to make sure that people who are affected by this have the appropriate opportunity to engage in that conversation," Baker said. "And we fully expect we will be doing that for the next several months."

May 6, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, May 04, 2016

Extended commentary assails prosecutorial power enabled by federal mandatory minimums

Amos Irwin, who serves as Chief of Staff at the Criminal Justice Policy Foundation (CJPF), has this lengthy new Huffington Post commentary headlined "The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist."  Here are excerpts that highlight some of its main themes:

[R]ather than serving Congress’s purpose, federal mandatory minimum drug laws actually function as a prosecutor’s tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, “prosecutors would lose a tool to extract information.”

They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders.... There are two problems with threatening long sentences to extract cooperation from low-level drug offenders.  First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily — the opposite of what Congress intended...

Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate.  Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats?  Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively.

May 4, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Ninth Circuit explains why disappearing does not get one out of a plea agreement or a mandatory minimum sentence

A little criminal decision handed down by the Ninth Circuit today brought to my mind the Woody Allen quote that half of life is just showing up.  Specifically, US v. Ornelas, No. 14-50533 (9th Cir. May 4, 2016) (available here), reveals that if you do not show up after signing a plea agreement, you still will get sentenced and be stuck with 100% of the terms of agreement. Here is how the opinion for gets started:

Federal law gives defendants the right to be present at their trials and sentencings unless they voluntarily waive this right. In this case, after signing a plea agreement admitting to drug distribution, but before sentencing, Israel Ornelas disappeared and lost contact with his lawyer.  The district court proceeded with sentencing in absentia and imposed a prison term of 120 months — the mandatory minimum for the charged crimes.

Ornelas was subsequently arrested and now claims the district court’s sentencing without his presence violated both the Federal Rules of Criminal Procedure and the Due Process Clause to the Constitution.  Because we find the district court did not abuse its discretion or violate Ornelas’s constitutional rights by sentencing him in absentia, we enforce the appeal waiver and DISMISS this appeal.

May 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5)

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, May 03, 2016

Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences

As reported in this AP piece, now with "the fate of hundreds of Florida death row inmates in limbo, a group of former top judges and legal officials called on the state Supreme Court to impose life sentences on nearly 400 people now awaiting execution." Here is more about a notable amicus filing:

The group, which includes three former state Supreme Court justices and two former presidents of the American Bar Association, filed a legal brief Tuesday in a case that could determine the fate of Florida's death penalty.

After the U.S. Supreme Court declared Florida's death sentencing law unconstitutional in January, the state's high court halted two executions and state legislators overhauled the way convicted killers can be sentenced to death.  But the Florida Supreme Court still hasn't decided what should happen to the 389 people on death row under the previous sentencing scheme.  The court is taking the highly unusual step of this week of holding a second hearing before issuing a ruling — a sign that the seven-member court could be deeply divided.

The court said it wanted to hear from attorneys representing death row inmate Timothy Lee Hurst and the state on what affect the new sentencing law will have on his case....  In March, Gov. Rick Scott signed into law a new sentencing process for those convicted of murder.  The new law requires at least 10 out of 12 jurors recommend execution for it to be carried out.  Florida previously required that a majority of jurors recommend the death sentence. It remains one of only a handful of states that does not require a unanimous jury decision.  The new law also requires prosecutors to spell out, before a murder trial begins, the reasons why a death sentence should be imposed, and requires the jury to decide unanimously if there is at least one reason, or aggravating factor, that justifies it.

The decision to hold a second hearing in Hurst's case prompted three former state justices — Harry Lee Anstead, Gerald Kogan and former U.S. District Judge Rosemary Barkett — to join with two former heads of the bar association and an organization representing defense attorneys to argue that an existing state law requires those now on death row to have their sentences reduced to life in prison.

The state has objected and argued the U.S. Supreme Court ruling is not retroactive.

The full amicus brief referenced in this piece is available at this link, and here is its key heading:

Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Eighth Circuit panel (sort of) finds severe erroneous career-offender sentence substantively unreasonable

A helpful reader alerted me to a notable Eighth Circuit panel ruling today in US v. Martinez, No 15-1004 (8th Cir. May 3, 2016) (available here). Here is how the majority opinion gets started and a few notable substantive statements:

Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines (U.S.S.G.) and sentenced him to 262 months' imprisonment.  It indicated, alternatively, it would sentence Martinez as a career offender even if he was not a career offender.  Martinez appeals, arguing he is not a career offender and his sentence is substantively unreasonable.

The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2557 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise — that the district court's alternative sentence is substantively unreasonable — we reverse and remand for resentencing....

We infer from [a sentencing] statement that the district court believed the escape conviction was a crime of violence — and Martinez was a career offender — whether the guidelines classified it as a crime of violence or not.  In other words, the district court sentenced Martinez to an additional nine years because, as a nineteen-year-old, Martinez threw an elbow at a police officer without striking the officer and ran from police for a short distance.  This severe variance is unreasonable.

The district court's other justifications do not support the degree of the upward variance either.  First, Martinez's convictions do not warrant such a severe upward variance.  Martinez's two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points....

Second, the evidence the government presented relating to Martinez's gang ties does not justify a nine-year upward variance either.  The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration.  He also appeared with other East Side Locos gang members in photographs.  While these photos and videosshow Martinez's gang ties, they do not depict Martinez actively engaging in any violent behavior.  And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.

May 3, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.

Prior related post:

May 3, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Some Dostoevsky-inspired insights on the death penalty delay canard

It is sometimes hard to find an academic eager to lambast death penalty abolitionists for even their weaker arguments, so I was somewhat surprised to see this new commentary by Noah Feldman titled "Delaying Execution Isn't Cruel and Unusual." Here are excerpts:

Following a view he has held since the 1990s, [Justice] Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.  The claim that death delayed is worse than death itself is a particularly shocking one because it's the converse of arguing that taking a human life before its natural endpoint is fundamentally immoral.  Instead, the view asserts that death must be administered quickly after sentencing to avoid the convicted person living on many years in prison -- even if that person wants to live as long as possible.

Make no mistake: in every case where an inmate has been on death row for many years, it’s by choice. In the case considered Monday, the defendant had been on death row for 32 years.  That’s the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.  A defendant who wants to die can skip the appeals, like Timothy McVeigh, the Oklahoma City bomber, who waived his appeals and was executed expeditiously.

The judges who hear capital appeals understand all this perfectly well.  They could put death penalty cases on the top of the docket.  But they don’t, at least in part because they know that every day of delay is another day of life for the defendant.  It’s one of the persistent facts about the death penalty that almost every person who is sentenced to die chooses to fight the sentence.

In theory, it's easy to say you’d rather be executed than spend your life in prison.  That sentiment is a stock line in television and film.  And I confess that I share it – or at least I think I do.  But no matter how powerful the thought, the empirical evidence suggests that, when push comes to shove, the human instinct to live another day is overwhelming. That’s why so-called “volunteers” such as McVeigh are vanishingly rare in our legal system....

So in what sense could it be cruel and unusual not to execute someone over a long period of time while his appeals are pending?  The answer has to be that the long-term prospect of death is itself a kind of torture, worse than the experience of contemplating your own execution in the immediate future.

That insight seems to follow from our imagined scene of the prisoner in his cell awaiting execution, like a character out of Dostoevsky.  The trauma and psychological pain of contemplating one’s imminent mortality seem bad enough. Imagine if that same trauma and pain were repeated for 32 years. In these terms, the delay could be seen as an unconscionable form of quasi-permanent torture.

But the reality must surely be otherwise.  A prisoner on death row doesn’t actually expect to be executed every day that he is there. Yes, courts often set execution dates.  But they do so in the full knowledge that those dates will probably be deferred.

From the perspective of the prisoner, the mere setting of the date is no doubt terribly upsetting.  But over time, even the most sensitive prisoner would surely get used to the repetitive structure of sentencing date followed by delay.  To cite Dostoevsky again, if imprecisely: “Man can get used to anything -- the brute!”

It emerges, I think, that the so-called Lackey claim to which Breyer is still devoted is psychologically unconvincing.  To live every day in the knowledge that eventually one will die is in fact the universal human condition.  Many of us will die in the next 32 years.  And none of us knows exactly on what day that will occur.

Those who oppose the death penalty on moral grounds have plenty of strong arguments on their side.  They don’t need this one, which in fact undercuts their claims about the inherent value of every day of human life.  The remedy for death delayed, after all, can only be death itself.

Prior recent related post:

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Do Public Defenders Spend Less Time on Black Clients?"

The question in the title of this post is the headline of this interesting new Marshall Project piece.  Here are excerpts (with a couple of key links highlighted):

[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.

A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release.  One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.

Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.”  He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”

“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”

Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence.  William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.”  He looks stricken.  “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”

It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”

Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].

If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.”  The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”

The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here]. 

I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.

May 3, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions

Rorschach-test_00411577The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways."   This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes.  But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender.  Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:

Tyler Moore is serving 50 years in prison.  It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder.  According to the Mississippi Department of Corrections, his tentative release date is 2061.  “I’ll be dead and gone by then,” said his mother, Lisa.  So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....

[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge.  The charge against him arose from a party where a young man claimed Moore had run his car into him.  Moore denied the claim, saying the young man jumped on his hood.

On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined.  While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.

The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses.  Moore apologized to the judge and admitted he had a drug problem.  He spent two days in jail, and the judge ordered drug tests for the next six months.

In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri....  He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....

As months passed, Moore grew homesick, and an old girlfriend wanted to see him.  He made it back to Mississippi before Christmas.  “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.”  In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.  

On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars....  After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days.  He admitted using crack cocaine, marijuana and alcohol.

A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl.  They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test.  Once again, the judge sent him for 30 days to drug rehab.

After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired.  Devastated, he sank into depression.  A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....

On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone.  When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”...  That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.

Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance.  When they arrived in Brandon, he bolted.  Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary.  With his family behind bars, he confessed to the burglaries.

In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years.  Moore refused to plead guilty to statutory rape.

Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended....  In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”

The district attorney’s office didn’t budge.  Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail.  Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.

On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”...  He confessed, “I don’t understand anything anymore, and I need help.”....

In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.

Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....

Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.”  Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole.  Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.

I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.

May 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, May 02, 2016

"Prosecutorial Analytics"

The title of this post is the title of this interesting-looking new article by Jason Kreag now avaible via SSRN. Here is the abstract:

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates.  The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision-making.

We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function.  This tool has revolutionized crime-fighting.  Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system.  This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.

May 2, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Digging deeply into Virginia's crowded prisons and parole paractices

A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state.  The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:

May 2, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, April 30, 2016

Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation

The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision.  Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:

Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”

“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.

The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.

April 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, April 29, 2016

With nine months left in Obama Administration, apparently it is time for a clemency last call

Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late.  Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences."  Here are excerpts:

The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January.  Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.

"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May.  "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."

Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.

While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.

The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.

White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...

Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.

However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants."  Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out.  In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."

I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.

April 29, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, April 28, 2016

Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"

Ap_clinton_lb_151013_12x5_1600Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):

Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential.  But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....

The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago.  African-American women are more than twice as likely to be in prison than white women.

But women aren't the only ones affected when they are sent to prison.  The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children.  Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.

We can't go on like this. It is time we reform our broken criminal justice system.  First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing.  Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up.  We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.

And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released.  I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs. 

Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes.  Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.

And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society.  Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison.  "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough.  In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....

Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer.  Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions.  We say we are a nation of second chances — and it's time that we act like it.

I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders.  That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive."  Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?

April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"

The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:

This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.

Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept.  The first category contains those circumstances courts have found do not, by themselves, confer leadership status.  For example, courts have found that controlling property alone does not make one a leader.  The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader.  For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well.  A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.

The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members.  Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.

This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.

April 28, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, April 27, 2016

Reviewing the final SCOTUS oral argument week that was full of criminal justice issues

As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue.  The highest-profile and perhaps most consequential of these cases was argued today  concerning the public corruption verdict against former Virginia Gov Bob McDonnell.  Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:

April 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent.  Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively. 

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:

Indiana appellate courts are authorized to independently “review and revise” sentences.  Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011).  This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender.  Pierce, 949 N.E.2d at 352.  As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]

[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).

April 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"

The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:

This paper examines the significant flaws in state occupational licensing criminal background check requirements.  One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records.  As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors.  In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.

Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health.  No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record.  Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.

License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions.  Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses.  Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.

April 27, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, April 26, 2016

Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law

This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:

Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.

Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”

That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.

The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.

SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”

“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....

Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.

Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”

“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.

Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.

“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”

April 26, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

MassiveStarLifecycleI have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova."  As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion."  I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.

I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case.  This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):

More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.

"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through.  I ask that you consider the man that is before you and give him leniency where you can."...

Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician.  They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks.  "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."

Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars.  He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.

In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said.  The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....

When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors.  Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.

I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment.  Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.

That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes.  (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.)  His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought  separate serious criminal charge for obstruction of justice.  

Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint.  For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys.  And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing.  (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)

So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?

April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)

"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"

Roadmap_to_reentry_slide-2The title of this post is the title of this new programming publication from the US Department of Justice.  Here is part of its "Overview":

Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons.  Another 11.4 million individuals cycle through local jails.  And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past.  Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....

The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend.  These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system.  This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.

Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities.  In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry.  The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.

To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry.  These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.

The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities.  Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.

April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)