Sunday, March 29, 2015

Previewing the little SCOTUS capital case examining what procedure Atkins may require

On the last Monday of March 2015, the only case being heard by the U.S. Supreme Court is a quirky capital case from Louisiana, Brumfield v. Cain, which appears only to concern the process by which a state rejects a defendant's claim that he is intellectually disabled and thus prohibited from execution after Atkins.  Here are the questions presented:

(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Lyle Denniston provides this SCOTUSblog preview, which notes that the lone amicus brief filed in this case highlights that Louisiana's "state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration."  In short, it seems unlikely that the Brumfield case will be of great consequence for anyone other than killer Kevin Brumfield. But one never knows what the Justices will do with a capital case.

March 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Local Tennessee prosecutors pushed for female sterilization in plea discussions

A helpful reader alerted me to this stunning AP article about a stunning aspect of what some local prosecutors sometimes incorporated into plea discussion with female defendants in Tennessee.  The piece is headlined "Attorneys: Sterilizations were part of plea deal talks," and here are some of the details:

Nashville prosecutors have made sterilization of women part of plea negotiations at least four times in the past five years, and the district attorney has banned his staff from using the invasive surgery as a bargaining chip after the latest case.

In the most recent case, first reported by The Tennessean, a woman with a 20-year history of mental illness had been charged with neglect after her 5-day-old baby mysteriously died. Her defense attorney says the prosecutor assigned to the case wouldn't go forward with a plea deal to keep the woman out of prison unless she had the surgery.

Defense attorneys say there have been at least three similar cases in the past five years, suggesting the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of a court .

Sterilization coerced by the legal system evokes a dark time in America, when minorities, the poor and those deemed mentally unfit or "deficient" were forced to undergo medical procedures that prevented them from having children.

"The history of sterilization in this country is that it is applied to the most despised people — criminals and the people we're most afraid of, the mentally ill — and the one thing that that these two groups usually share is that they are the most poor. That is what we've done in the past, and that's a good reason not to do it now," said Paul Lombardo, a law professor and historian who teaches at Georgia State University.

Davidson County District Attorney Glenn Funk agrees. A former defense attorney who took over the office in September, he recently ordered lawyers in his office not to seek sterilization by defendants. He said he hadn't heard of it happening before but didn't ask. Funk said people could be ordered to stay away from children, and the state wouldn't have to resort to such invasive measures. "The bottom line is the government can't be ordering a forced sterilization," Funk said.

However, such deals do happen.

In West Virginia, a 21-year-old unmarried mother of three agreed to have her tubes tied in 2009 as part of her probation after she pleaded guilty to possession with intent to distribute marijuana. And last year, a Virginia man who fathered children with several women agreed to undergo a vasectomy in exchange for less prison time in a child endangerment case.

Forced sterilization came up in a different way in California last year, when Gov. Jerry Brown signed a bill that banned state prisons from forcing female inmates to be sterilized. The law was pushed through after the Center for Investigative Reporting found that nearly 150 female prisoners had been sterilized between 2006 and 2010. An audit found that the state failed to make sure the inmate's consent was lawfully obtained in every case ....

The assistant district attorney who worked the [most recent] case, Brian Holmgren, is a child prosecutor who speaks around the country, was once a senior attorney with the National Center for Prosecution of Child Abuse and serves on the international advisory board of the National Center for Shaken Baby Syndrome. He has been both praised and fiercely criticized for his aggressive courtroom tactics on behalf of children.... Holmgren did not respond to several messages seeking comment.

Nashville defense attorney Carrie Searcy said Holmgren asked that two of her clients who gave birth to children who tested positive for drugs undergo sterilization. Neither did, Searcy said, because both women had already undergone the procedure.

Assistant public defender Joan Lawson, who also supervises other attorneys, said she also had been involved in cases in which a prosecutor had put sterilization on the table. Lawson said it was typically not an explicit demand, was not an everyday occurrence and was made off the record. Lawson said she refused the idea and resolved her cases without sterilization. "It's always been more of 'If your client is willing to do this, then I might be inclined to talk about probation,'" Lawson said.

March 29, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, March 26, 2015

"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"

The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:

Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system.  This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences.  In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.

This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases.  At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant.  Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process.  These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller.  This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing. 

March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

New report documents huge drop in Colorado marijuana arrests since legalization

Download (7)While the impact, both good or bad, of marijuana law reform is now widely discussed and debated, there is still relatively little hard reliable data about the public health and economic consequences of these reforms.  But this new report  from the Drug Policy Alliance, headlined "Marijuana Arrests in Colorado After the Passage of Amendment 64," highlights that legalization in one state has had a profound impact on arrest data.  This DPA press release provides an overview and summary of the report, and here are excerpts:  

The report compiles and analyzes data from the county judicial districts, as well as various law enforcement agencies via the National Incident Based Reporting System (NIBRS). The report’s key findings include:

  • Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.
  • The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010 – from 30,428 in 2010 to just 1,922 in 2014.
  • According to raw data from the NIBRS, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents....
  • Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a ‘net-widening’ effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.
  • Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily due to the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.
  • The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.

“It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana,” said Art Way, Colorado State Director for the Drug Policy Alliance. “By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.”

“The overall decrease in arrests, charges and cases is enormously beneficial to communities of color who bore the brunt of marijuana prohibition prior to the passage of Amendment 64,” said Rosemary Harris Lytle, Regional Chair of the NAACP. “However, we are concerned with the rise in disparity for the charge of public consumption and challenge law enforcement to ensure this reality is not discriminatory in any manner.”

“What is often overlooked concerning marijuana legalization is that it is first and foremost a criminal justice reform,” said Denise Maes, Public Policy Director for the ACLU of Colorado. “This report reminds us of how law enforcement and our judiciary are now able to better allocate time and energy for more pressing concerns.”

Some prior related posts:

March 26, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Is it constitutional to "offer" juve offenders the alternative sentence of writing a bible essay?

The question in the title of this post is prompted by this local article about a novel alternative sentence being utilized by a judge in Mississippi.  Here are the details:

Dozens of tickets are written every month in South Mississippi for minors in possession of alcohol. It is an offense that could not only cost the person charged hundreds of dollars, it could also cause them to lose their license for up to 90 days, and even worse; it can follow them the rest of their lives. "If you enter a plea of guilty, it's on your record," Harrison County Justice Court Judge Albert Fountain said.

Fountain knows everyone makes mistakes, and instead of letting one mistake follow a young person for the rest of their life, the judge has come up with an alternative way to sentence children charged with minor in possession of alcohol. "A 1,000 word essay on The Book of Revelations and also the effects from drinking alcohol," Fountain said. "I don't force them to do that. It's their choice. That's just my recommendation. They can write it on anything they want to."

He also takes their license for 10 days and places them on a 90 day non-reporting probation with conditions of good behavior. "It just felt like I had to do something different," Fountain said. "There is more to it than just sentencing someone, and I felt I needed to make a difference."

While he knows it can be considered controversial, Fountain feels it is right. "Separation of church and state is a big topic, and I understand some people have their beliefs, but I think what's wrong with the country today is that we've taken Christ and God out of everything," Fountain said.

The judge has been sentencing children this way for the past eight to 10 years. He said about one in every 20 children choose to write an essay on something other than The Book of Revelations. "Some of the things I have gotten from them is that the fear, really reading the essays, what they ought to face in the future if they don't do the right things," Fountain said. "It's pleasing to me to see that."

March 26, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 25, 2015

You be the judge: what federal sentence for modern sheriff playing Robin Hood?

ImagesIn the legend of Robin Hood, the Sheriff of Nottingham is the tale's primary villain. But this sentencing story out of South Carolina raises the question of what federal sentence ought to be given to a local sheriff who was committing fraud as a kind of modern Robin Hood. The press report is headlined "Convicted Williamsburg sheriff asks for sentencing leniency," and here are the details:

The convicted former sheriff of Williamsburg County should be sentenced to less than the three years in prison recommended by federal officials because he succeeded despite a troubled upbringing and is being treated for a painkiller addiction, his lawyer said.

Ex-sheriff Michael Johnson faces a judge Wednesday to learn his fate after a federal jury convicted him in September of mail fraud. Prosecutors said Johnson created hundreds of fake police reports for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit card debt. The sentencing recommendation for Johnson is 30 months to 37 months in prison, according to court papers filed this week.

Johnson's attorney said that is too harsh for a man with no criminal record who cooperated with authorities. Johnson's request asks for a lesser sentence, but is not specific. Johnson has suffered from depression and anxiety the past four years. He also has migraines, high blood pressure and insomnia, lawyer Deborah Barber said in court papers.

The former sheriff also was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden, Barber said. "He resided in a poverty-stricken area in Kingstree, South Carolina, with the family not having enough money to adequately survive," Barber wrote....

Johnson joined the Williamsburg County Sheriff's Office in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010 when the former sheriff, Kelvin Washington, was named U.S. Marshal for South Carolina.

He is one of nine sheriffs in South Carolina's 46 counties to be charged or investigated while in office since 2010. Seven have pleaded guilty or been convicted, and another died while under investigation. Only two of those sheriffs so far have been sentenced to prison.

Intriguingly, this long earlier article explains some of the details of the fraud, and it suggests that sheriff Johnson may not have made any money from the scheme designed to help people to (falsely) improve their credit rating. I am disinclined to assert that sheriff Johnson is as noble or heroic as Robin Hood, but it does seem like his fraud involved trying to help some folks down on their luck by pulling a fast one on the (big bad monarchy?) credit companies. Given that the federal sentencing guidelines still call for a prison term of at least 2.5 years, I am now wondering what the real Robin Hood might have been facing in a federal fraud guideline range if he were facing sentencing today.

March 25, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Tuesday, March 24, 2015

"The Executioners' Dilemmas"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.

This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.

Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

March 24, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Should prison terms end once criminals seem "too old" to recidivate?

The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?".  Here are excerpts:

Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing.  But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011.  It was the harshest sentence available.  That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of five­year extensions if he is still deemed a risk to the public in 2033, when he is 53.

The idea of a 21-­year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty.  Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach.  He made the case for a 20­-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public.  Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”

This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....

Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20­-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-­enter society.

This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third­-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one­-size-­fits-­all leniency to even violent offenders.

Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”

March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, March 23, 2015

The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case

Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:

14-280 MONTGOMERY, HENRY V. LOUISIANA

The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"

This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions.  If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.

Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception.  Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires.  The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.  

In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case.  But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).

If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club.  Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?".  Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”

Download NJLJ State retroactivity article

March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"

0323_dems-copy-620x363The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case.  Here are the basics: 

As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.

In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....

Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.

Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.

Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.

Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.

Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....

So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.

March 23, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?

The provocative question in the title of this post is prompted by the notable celebrity sentencing news breaking today and reported in this extended USA Today article headlined "Darren Sharper sentenced to nine years in first of plea deals." Here are the details:

Former NFL star Darren Sharper was sentenced to nine years in prison Monday in Arizona after pleading guilty to sexual assault and attempted sexual assault in November 2013, the Maricopa County Attorney's office confirmed to USA TODAY Sports.

Sharper, 39, entered his pleas Monday in Arizona from Los Angeles, where he was expected to appear in court later in the day and enter a guilty plea in connection with two other rape allegations from 2013 and 2014.

The pleas are part of an attempted "global" plea agreement that could resolve all nine rape charges against him in four states. In addition to the charges in California and Arizona, he faces two rape charges in Las Vegas and three in New Orleans, where is expected to enter guilty pleas within the next month.

The sentences will run concurrently in federal prison, said Jerry Cobb of the Maricopa County Attorney's office. Sharper is not eligible for early release in Arizona, but will be credited for time served in Los Angeles, where he has been in jail without bail since Feb. 27, 2014.

By agreeing to the plea deal, Sharper, 39, avoids the risk of receiving an even worse punishment in the future and expensive litigation that could drag on indefinitely in four states. If convicted, he faced life in prison in Louisiana and more than 30 years in Los Angeles. For prosecutors, the plea deal avoids the risk of going to trial, where juries might be influenced by Sharper's fame and celebrity defense attorneys.

His suspected string of serial rapes ended in January 2014, when he was arrested on a suspicion of rape in Los Angeles. At the time of his first arrest, he had 20 zolpidem pills in his possession – a sleep drug known by its brand name Ambien. Sharper obtained a prescription for the drug after suffering sleep problems he attributed to his 14-year career in the NFL with the New Orleans Saints, Green Bay Packers and Minnesota Vikings, according to a workers compensation claim form he filed in 2012.

The drug can be slipped into drinks to knock out women and rape them, and that's what authorities say Sharper did time after time, according to court records. Sharper ultimately was charged with nine rapes in four states, including three in consecutive nights in two different states in January 2014.

None of the cases went to trial or even received an evidentiary hearing except in Arizona, where a judge ruled last April there was "proof evident" Sharper raped a women there in November 2013. DNA found inside the women's body partially matched Sharper's, and a witness reported waking up and seeing Sharper naked and making thrusting movements over the woman, according to a detective's testimony at the hearing.

The detective said the woman hadn't known Sharper before that night and didn't remember what happened to her after consuming a drink Sharper made her. Zolpidem was found in the cup in subsequent tests. Though Sharper's attorney noted that none of Sharper's sperm was found on the alleged victims in Arizona, the detective said he was told that Sharper had a vasectomy, which could explain the lack of sperm. The revelation caused a stir that day in Arizona, where Sharper was charged with drugging three women and raping two of them.

In Los Angeles, he was charged with drugging and raping two women – one in October 2013 and one in January 2014. In the first one, Sharper met two women at a club in West Hollywood and later invited them to his hotel room, where he offered them a drink, according to a police report of the incident filed in court....

In New Orleans, Sharper was accused of drugging and raping two women in September 2013. He also faced federal drug charges and another rape charge from Aug. 31, 2013, all of it happening just a few years after he helped the Saints win a Super Bowl in 2010.

Though the evidence against Sharper has not, obviously, been proven in court, this press account and his global plea leads me to think he truly is guilty of nine rapes. And assuming that is true, a year in prison for each of nine rapes is a pretty sweet plea deal. Ergo the question in the title of this post.

March 23, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

"A Commentary on Statistical Assessment of Violence Recidivism Risk"

The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:

Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)).  Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations.  Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.

Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly.  This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.

March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 21, 2015

"Sentencing Enhancement and the Crime Victim's Brain"

The title of this post is the title of this interesting new article now available via SSRN authored by Francis X. Shen. Here is the abstract:

Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”?  Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses.  This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries?

The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain.  There is no successful justification for treating mental injuries as categorically distinct from other physical injuries.  There is, however, good reason for law to treat mental injuries as a unique type of physical injury.  Enhancement of criminal penalties for mental injuries must pay special care to the causal connection between the offender’s act and the victim’s injury.  Moreover, it is law, not science, that must be the ultimate arbiter of what constitutes a sufficiently bad mental harm to justify a harsher criminal sentence, and of what evidence is sufficient to prove the mental injury.

March 21, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Friday, March 20, 2015

"Victim's wife: Keep me out of death penalty fight"

The title of this post is the headline of this notable new article out of Philadelphia which highlights how victims often can and will get victimized again by the political debates over the death penalty.  Here is how the piece starts:

Since Gov. Wolf declared his moratorium on the death penalty last month, proponents of capital punishment have rallied around one case to push their cause - the scuttled execution of Terrance Williams, a Philadelphia man sentenced to die in 1986 for the beating death of a Germantown church volunteer.

But on Thursday, the widow of Williams' victim had a message for critics of the governor's action: Leave me out of it. In a publicly circulated letter, Mamie Norwood, whose husband, Amos, was killed by Williams in 1984, accused State Rep. Mike Vereb (R., Montgomery) and Philadelphia District Attorney Seth Williams of using her husband's slaying for political gain.

"You have never spoken to me and do not speak for me," Norwood wrote, adding that she had forgiven Terrance Williams long ago and did not want to see him put to death. She added: "Please don't use me . . . to get your name in the news. You should be truly ashamed of yourselves."

Norwood's letter was distributed by a group of Terrance Williams' supporters who run the website www.terrywilliamsclemency.com.

Norwood's letter is available at this link.

March 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, March 19, 2015

"Beyond the Right to Counsel: Increasing Notice of Collateral Consequences"

The title of this post is the title of this new paper available via SSRN authored by Brian M. Murray. Here is the abstract:

In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities.  In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel.  These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction.

This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel.  It argues that because the criminal justice system is primarily one of pleas rather than trials, alternative solutions that involve active participation by other actors involved in the plea process are necessary.  Judicial participation in the notice process, informed by the guarantees of the Fifth Amendment, should be from beginning to end, starting with arraignment and ending with the guilty plea colloquy presented to the court.  This solution comports with the spirit of Missouri v. Frye and Padilla v. Kentucky, which recognize the significance of notice as essential to combating the root of the problem, albeit in the Sixth Amendment context. Likewise, prosecutors must become more mindful of the how convictions affect individuals and should contribute to improving awareness through disclosure obligations at the time of a plea offer.  These efforts will cumulatively heighten legal literacy over time – amongst all players within the system – and allow for an equitable distribution of burdens when addressing this issue.

March 19, 2015 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Florida Supreme Court decides unanimously that Miller applies retroactively to all mandatory juve LWOP sentences

As reported in this local piece, the "Florida Supreme Court unanimously ruled Thursday that all of the state’s juvenile killers who received automatic sentences of life in prison must be resentenced under a law passed in 2014." Here is more: 

The long-awaited ruling answers the question of whether the U.S. Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juvenile killers, applies retroactively. An estimated 250 state prisoners, 17 of them from Lee and Collier counties, are serving life sentences for murders committed before they turned 18.

Under Florida’s 2014 law, passed to conform with the U.S. Supreme Court decision, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder.

Since the state’s law was passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should also receive the same consideration. After the state’s five appeals courts gave conflicting opinions, the Florida Supreme Court weighed in Thursday.

The seven justices found that the U.S. Supreme Court’s ban “constitutes a development of fundamental significance,” the standard used to determine whether changes to Florida law apply retroactively. “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the (U.S.) Supreme Court’s decision in Miller retroactively,” Justice Barbara J. Pariente wrote in the opinion....

Under Florida’s new law, juveniles can still receive life behind bars. That sentence, however, must be made after a judge considers several factors, including the juvenile’s personal background, maturity and criminal history. At a minimum, a juvenile convicted of first-degree murder who committed the homicide must receive 40 years in prison.

The full ruling in Falcon v. Florida, No. SC13-865 (Fla. March 19, 2015), is available at this link.

March 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Making the effective case for graduated reentry to reduce incarceration and recidivism

This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:

While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.

The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.

This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.

Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....

For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.

Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....

There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.

Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.

March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Wednesday, March 18, 2015

Death penalty symbolism and Robert Durst

Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:

Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.

I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.

March 18, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

"Law & Tactics for a Market-Reality Narcotics Policy"

The title of this post is the title of this notable new article by Mark William Osler now available via SSRN. Here is the abstract:

The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed.  However, drug use continues to be a profound social problem that must be confronted.

This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks.  Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs.

This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.

March 18, 2015 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, March 16, 2015

"How Prison Stints Replaced Study Hall: America’s problem with criminalizing kids."

The title of this post is the headline of this lengthy new Politico magazine article.  Here are excerpts from the start of the piece:

Police officers in Meridian, Mississippi, were spending so much time hauling handcuffed students from school to the local juvenile jail that they began describing themselves as “just a taxi service.” It wasn’t because schools in this east Mississippi town were overrun by budding criminals or juvenile superpredators — not by a long shot.  Most of the children were arrested and jailed simply for violating school rules, often for trivial offenses....

For many kids, a stint in “juvie” was just the beginning of a never-ending nightmare. Arrests could lead to probation. Subsequent suspensions were then considered probation violations, leading back to jail. And suspensions were a distinct possibility in a district where the NAACP found a suspension rate that was more than 10 times the national average.

In 2012, the U.S. Department of Justice filed suit to stop the “taxi service” in Meridian’s public schools, where 86 percent of the students are black.  The DOJ suit, still unresolved, said children were being incarcerated so “arbitrarily and severely as to shock the conscience.” We should all be shocked.

The reality, though, is that Meridian’s taxi service is just one example of what amounts to a civil rights crisis in America: a “school-to-prison pipeline” that sucks vulnerable children out of the classroom at an alarming rate and funnels them into the harsh world of police, courts and prison cells.

For many children, adolescent misbehavior that once warranted a trip to the principal’s office — and perhaps a stint in study hall — now results in jail time and a greater possibility of lifelong involvement with the criminal justice system.  It should surprise no one that the students pushed into this pipeline are disproportionately children of color, mostly impoverished, and those with learning disabilities.

The story of Meridian is more than an example of school discipline run amok.  It’s a key to understanding how the United States has attained the dubious distinction of imprisoning more people — and a larger share of its population — than any other country.  It’s one reason why the United States today has a quarter of the world’s prisoners—roughly 2.2 million people — while representing just 5 percent of its total population. And it helps explain an unprecedented incarceration rate that is far and away the highest on the planet, some five to 10 times higher than other Western democracies....

The origins of the school-to-prison pipeline can be traced to the 1990s when reports of juvenile crime began to stoke fears of “superpredators” — described in the 1996 book Body Count as “radically impulsive, brutally remorseless youngsters” with little regard for human life.  The superpredator concept, based on what some critics have derided as junk science, is now known to be a complete myth.  Former Princeton professor and Bush administration official John DiIulio, the Body Count co-author who coined the term, admitted to The New York Times in 2001 that his theory of sharply rising juvenile violence had been wrong.

But the damage had been done.  As these fears took root and mass school shootings like the one at Columbine made headlines, not only did states enact law laws to increase punishment for juvenile offenders, schools began to adopt “zero-tolerance” discipline policies that imposed automatic, pre-determined punishments for rule breakers.

At the same time, states across America were adopting harsh criminal laws, including long mandatory prison sentences for certain crimes and “three strikes” laws that led to life sentences for repeat offenders.  The term “zero tolerance” was, in fact, adopted from policing practices and criminal laws that focused on locking up minor offenders as a way to stem more serious crime.

Somewhere along the way, as local police departments began supplying on-duty “school resource officers” to patrol hallways, educators began to confuse typical adolescent misbehavior with criminality.  Schools became, more or less, a part of the criminal justice system. With police officers stalking the halls and playgrounds, teachers and principals found it easy to outsource discipline. Almost overnight, a schoolyard scuffle could now land a kid in a jail cell.

The results have been disastrous.

March 16, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack