Tuesday, April 28, 2015

Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht

This new Forbes article, headlined "Ulbricht's Defense Calls For Delayed Sentencing After Feds Reveal Six Alleged Silk Road Drug Overdose Deaths," reports on a notable new development in the lead up to the sentencing of a notable federal defendant.  Here are the details:

The twists and turns in the Silk Road case aren’t slowing down as Ross Ulbricht’s sentencing approaches. According to a letter filed Friday, the government claims that six people allegedly died of overdosing on drugs bought on the Silk Road. Two of their parents will be speaking at Ulbricht’s sentencing, which is currently scheduled for May 15, 2015.

Because of this, Ulbricht’s defense is asking for his sentencing to be postponed for at least one month. In a letter on Friday, Joshua Dratel requested an adjournment of the sentencing, which is currently less than three weeks away. By Dratel’s logic, it shouldn’t matter to the prosecution, since Ulbricht is in jail already awaiting sentencing, but it would give the defense time to prepare.

The defense wants preparation time to respond to the government’s revelation on April 16 that there were “six alleged overdose deaths supposedly attributable to drugs purchased from vendors on the Silk Roads.” The parents of two of the alleged overdose victims will be speaking from 10-15 minutes each at the sentencing, according to a document filed by the prosecution on April 17. The government intends to use these deaths as part of the context for the sentencing and the victim impact assessment.

Dratel says the information the defense has received about the six deaths is “woefully incomplete.” According to the letter, the defense hasn’t seen evidence that the drugs were purchased on the Silk Road or certain autopsy, toxicology, and psychiatric information for the six individuals. Additionally, Dratel asked for the identities and statements of the two parents who will be speaking at the sentencing in order to avoid being “blindsided.”

While the government seems to [be] planning to hammer home its argument that the Silk Road was a dangerous and illegal operation with Ulbricht at the helm with these parents’ testimonies, the defense plans to argue the opposite–that the Silk Road actually made drug use safer. In the letter, Dratel states that the Silk Road “reduced the dangers of substance abuse, and consciously and deliberately incorporated ‘harm reduction’ strategies.” The defense has been working with experts, according to the letter, and needs more time to bring those witnesses to testify in person in response to the government....

After being arrested in a San Francisco library in October 2013 for allegedly running the Silk Road, Ulbricht faced trial in January 2015. After three weeks of trial and 3.5 hours of jury deliberation, he was found guilty of seven charges connected to his role as the Dread Pirate Roberts. Since then, he’s been in jail awaiting sentencing while his lawyers fought first for re-trial and now for delayed sentencing.

Prior related post:

April 28, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Going Retro: Abolition for All"

The title of this post is the headline of this notable new and timely article authored by Kevin Barry now available via SSRN. Here is the abstract:

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so.  Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes.  State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row.  In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.

Some states, however, are “going retro.”  In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”).  More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons.  The first is political: legislators are not pursuing retroactive legislation because they do not have the votes.  The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere — to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.

This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not.  As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity.  They demand abolition for all.

April 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 27, 2015

Interesting analysis of "Watersheds" in state collateral retroactivity review

Especially with the Supreme Court finally taking up the retroactivity of its 2012 Eighth Amendment ruling in Miller, I have been giving extra thought to the Supreme Court's Teague doctrine and jurisprudence.  Consequently, I found this new article on SSRN titled simply "Watersheds" of particular interest. The piece is authored by Dov Fox and Alex Stein, and here is the abstract:

Watershed doctrine governs the conditions under which a prisoner who has exhausted his appeals is entitled to retrial or even release based on a change in the rules of constitutional criminal procedure. Newly announced due process rules unavailable to him at trial or on direct review can provide a constitutional basis to reopen his guilty verdict or punishment.  The Supreme Court, however, has imposed strikingly demanding requirements for backdating any such rule to a finalized conviction or sentence.  It has since Teague v. Lane held that no new due process rule applies retroactively unless it is a “watershed” protection that profoundly enhances not only the accuracy of convictions across the board but also “our very understanding of the bedrock procedural elements.”

In the twenty-five years since Teague, the Court has explicitly refused to confer this watershed status on even a single new rule of criminal procedure among the dozens of major protections that it has announced.  Unsurprisingly, scholarly consensus casts watershed doctrine as exceptional, obscure, and insignificant.

This Essay breaks new ground in the law of retroactivity.  We use the “dynamic concentration” model of game theory to identify the important and unrecognized role that watershed doctrine plays in counteracting the structural undersupply of constitutional due process rules.  The Supreme Court maintains too small a caseload to scrutinize every state court decision or specify each demand of criminal procedure.  The Court’s inability to review more than a fraction of due process violations or to detail more than a fraction of due process directives ill equips it to rein in the punitive tendencies of state judges who owe their jobs to constituencies that tend to value crime prevention more than defendants’ rights.

Watershed doctrine mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of finalized convictions.  By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of state prisoners into the public.  This existential threat motivates state courts to venture beyond existing precedents and align the due process practices in their states with the potentially farther-reaching protections the Supreme Court might make retroactive in the future.  The watershed doctrine accordingly incentivizes state courts to sustain a constitutional safe harbor for state criminal procedures.

Confirmation of this enforcement theory comes from our comprehensive study of all 338 watershed decisions that state courts have issued over that doctrine’s quarter of a century between 1989 and 2014.  We find that a conspicuous proportion of these decisions — more than one in ten — demonstrably inflates the retroactivity rights of criminal defendants and that not one of these cases fails to accord watershed status to a rule that might qualify.

April 27, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Is US push for sentencing reform progressive enough to embrace progressive "day fines"?

The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland.  The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:

Getting a speeding ticket is not a feel­good moment for anyone. But consider Reima Kuisla, a Finnish businessman.  He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone.  And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.

Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income.  The thinking here is that if it stings for the little guy, it should sting for the big guy, too.  The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes.  He said he was seriously considering leaving Finland altogether....

The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending.  Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines.  A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...

At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”

The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines.  Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation.  But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”

In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.

Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense.  Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport.  Given the speed he was going, Mr. Kuisla was assessed eight days.  His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.

Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370.  Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590).  When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....

Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns.  But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent.  “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.

But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country.  Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....

Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years.  According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone.  That ticket was for 63,448 euros, about $83,769 at the time.  Bigger yet was the ticket issued to a 44-­year-­old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.  

Both tickets were appealed and in the end reduced.  Usually, appeals are based on financial issues, such as a one­-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.

Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.

Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).

April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack

Sunday, April 26, 2015

Arguments against death penalty abolition prevail in great Intelligence Squared debate

DownloadI have long been a fan of the Intelligence Squared debate series, which I often hear on my local NPR station (and which too often leads me to stay in my car longer than I had intended).  I was especially excited when I learned that the series was finally going to focus on the death penalty.  The live debate took place earlier this month, and this NPR link provides access to the 50-minute audio recording, as well as this account of the event (with my emphasis added):

The death penalty is legal in more than 30 states, but the long-controversial practice has come under renewed scrutiny after a series of botched executions in several states last year.

Opponents of capital punishment argue that the death penalty undermines the fair administration of justice, as wealth, geography, race and quality of legal representation all come into play, with uneven results.

But proponents of the death penalty believe capital punishment serves a moral and social purpose in American society. They argue that while the administration of the penalty is not perfect, improvements can be made in the justice system to address some opponents' concerns without doing away with the punishment altogether. Some people deserve to die, they say, for committing certain types of crime.

Two teams faced off over these questions in the latest event from Intelligence Squared U.S., debating the motion, "Abolish The Death Penalty." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.

Before the debate, 49 percent of the audience at the Kaufman Music Center in New York voted in favor of the motion, while 17 percent were opposed and 34 percent were undecided. After the event, 54 percent agreed with the motion and 40 percent disagreed, making the team arguing against abolishing the death penalty the winners of the debate.

For The Motion

Diann Rust-Tierney became the executive director of the National Coalition to Abolish the Death Penalty in 2004. With 30 years of experience in public policy and litigation advocacy, she manages the operations of NCADP and directs programs for the organization and its 100 affiliate organizations....

Barry Scheck is the co-founder and co-director, with Peter Neufeld, of the Innocence Project and a professor at the Cardozo School of Law. Known for landmark litigation that has set standards for forensic applications of DNA technology, he and Neufeld have shaped the course of case law nationwide, leading to an influential study by the National Academy of Sciences, as well as important state and federal legislation....

Against The Motion

Robert Blecker is a professor at New York Law School, a nationally known expert on the death penalty and the subject of the documentary Robert Blecker Wants Me Dead. After a brief stint prosecuting corruption as a New York special assistant attorney general, he joined New York Law School, where he teaches constitutional history and criminal law, and co-teaches death penalty jurisprudence with leading opponents....

Kent Scheidegger has been the legal director of the Criminal Justice Legal Foundation since 1986. A nonprofit, public interest law organization, CJLF's purpose is to assure that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner. Scheidegger has written over 150 briefs in U.S. Supreme Court cases....

I think it is fair to assert that both sides in this debate had a "dream team" arguing, and I also think it is very notable that an audience in New York City by its votes determined, essentially, that arguments against abolition of the death penalty are more compelling than argument for abolition. For that reason (and many others), anyone interested in the death penalty should find 50 minutes to listen to this terrific IS debate.

April 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Saturday, April 25, 2015

Lots of thoughts for and about new Attorney General Loretta Lynch

In the wake of the confirmation of Loretta Lynch to be Attorney General, I see lots of traditional and social media discussion of what she might and what she should do in this role in the months ahead.  Here is a sampling of some of some of this commentary:

Because I know so very little about the (always opaque) internal structure and politics of the US Department of Justice, I do not have any detailed predictions or concrete advice for the new Attorney General. In the short term, I am hopeful she will give some speeches in order to better identify her likely priorities in the months ahead.

April 25, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 23, 2015

Senate finally votes on AG nominee and confirms Loretta Lynch by vote of 56 to 43

The GOP has finally succeeded in getting Attorney General Eric Holder out of his job by finally allowing the full Senate to vote on his nominated successor, Loretta Lynch.  This New York Times article provides more of the details, and starts this way:

After one of the nation’s most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta Lynch to be attorney general. She is the first African-American woman to hold the position.

Ms. Lynch, the United States attorney for the Eastern District of New York, was confirmed 56 to 43.

Her confirmation took longer than that for all but two other nominees for the office: Edward Meese III, who was nominated by President Ronald Reagan, and A. Mitchell Palmer, who was picked by President Woodrow Wilson, according to the Congressional Research Service.

Republicans have found themselves in a quandary for months. They longed to replace Attorney General Eric H. Holder Jr., and they agreed that Ms. Lynch was qualified for the job. But they opposed her because Ms. Lynch defended President Obama’s executive actions on immigration.

What’s more, Senator Mitch McConnell, Republican of Kentucky and majority leader, had held up the nomination until the Senate voted on a human trafficking bill, a process that dragged on for weeks. The measure passed on Wednesday by a vote of 99 to 0. And some Republicans continued to strongly oppose Ms. Lynch. “We do not have to confirm someone to the highest law enforcement position in America if that someone has committed to denigrating Congress,” Senator Jeff Sessions, Republican of Alabama, said on the Senate floor Thursday. “We don’t need to be apologetic about it, colleagues.”

In the end several Republicans — to the surprise of many of their own colleagues — voted aye for Ms. Lynch, including Mr. McConnell.

Some conservative groups had called on Senate Republicans to block a vote on Ms. Lynch altogether because of her stance on the president’s immigration policies. Many Senate Republicans feared the party would face serious political repercussions if it blocked an African-American woman with strong credentials and enthusiastic support from many in law enforcement.

Opponents still forced a procedural vote before her final confirmation, an unusual requirement for such a high position. The nomination moved along easily, by a vote of 66 to 34.

April 23, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"

The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:

This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences. 

April 21, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

By 6-3 vote, SCOTUS finds Fourth Amendment violation from stop at start of federal drug prosecution

The US Supreme Court handed down a notable Fourth Amendment ruling this morning in Rodriguez v. US, No. 13-9972 (S. Ct. April 21, 2015) (available here).  Though not a sentencing case, I cannot help but wonder if some votes on the case were somewhat influenced by the federal drug war setting that raised the import and stakes for the Fourth Amendment issue brought to the Justices.  Here, for starters, is the start of this Court's opinion per Justice Ginsburg:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitu­tion’s shield against unreasonable seizures.  A seizure justified only by a police-observed traffic violation, there­ fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407.  The Court so recog­nized in Caballes, and we adhere to the line drawn in that decision.

Notably, this federal criminal case started with a seemingly routine traffic stop based on a Nebraska driver veering to avoid a pothole and ended with a federal drug prosecution requiring the defendant to serve a mandatory minimum 5-year federal prison term for possessing 50 or more grams of meth with intent to distribute. I cannot help but think these contextual realities played some (perhaps unconscious) role in a majority of the Justices concluding that the extension of the traffic stop was unconstitutional with this kind of statement: "Highway and officer safety are interests different in kind from the Government’s endeavor to de­tect crime in general or drug trafficking in particular."

Here is how the primary dissent by Justice Thomas in Rodriguez gets started:

Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” Illinois v. Caballes, 543 U. S. 405, 408 (2005).  The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes.  Because the stop was reasonably executed, no Fourth Amendment violation occurred.  The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.  It was also unnecessary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff.  I respectfully dissent.

Here is how a distinct dissent by Justice Alito in Rodriguez gets started:

This is an unnecessary, impractical, and arbitrary decision.  It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs.  In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.

April 21, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Monday, April 20, 2015

Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?

As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:

The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.

Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....

A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....

Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."

Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.

But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....

During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.

Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....

If even one juror votes against the death penalty, Tsarnaev will get a life sentence.

April 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"

The title of this post is the headline of this notable local news story emerging today from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.

April 20, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 19, 2015

After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence

As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term.  (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case).  With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware.  Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):

Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s.  A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term.  If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....

The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics.  But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender.  He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win.  Days before his arrest, he abandoned his campaign.

Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them.  After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.

Prosecutors struggled, meanwhile, to keep the victim out of trouble.  The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley.  And after the first trial ended, he was charged by Delaware State Police with a gun offense.

But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.

The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply.  "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court.  "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.

At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts.  That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.

Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography.  His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.

In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be.  In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier.  Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.

Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial.  Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment.  And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.

Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders.  But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.

I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did.  But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.

April 19, 2015 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 17, 2015

Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"

Richard-right1The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:

The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.

But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.

April 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 16, 2015

Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal

Dent_hero_1500This story from the Dallas Morning News tells the remarkable story of a remarkable defendant with a remarkable inability to stop drinking and driving.  The piece is headlined "Author Jim Dent gets 10-year prison sentence after 10th DWI," and here are the basics:

Best-selling author Jim Dent was sentenced Wednesday to 10 years in state prison as part of a plea deal with Collin County prosecutors. The author of such books as The Junction Boys and Manziel Mania had pleaded guilty in November 2013 to two driving while intoxicated charges – his ninth and 10th such convictions that spanned more than three decades and four states.

But Dent fled to Mexico rather than attend his sentencing hearing at the McKinney courthouse in February 2014. He said he spent a year south of the border before hitting rock bottom and deciding to return to the states. He was arrested crossing the border into San Diego in late January and transported to Collin County in February to face the charges.

Dent worked as a sports writer covering the Dallas Cowboys for more than a decade for the Fort Worth Star-Telegram and the Dallas Times Herald. In 1991, he quit the newspaper business and became a nationally syndicated radio talk show host. He also started writing books. His status in sports circles and his bigger than life personality paved the way for his access to big names and exclusive events.

Because of the plea agreement, Thursday’s previously scheduled sentencing hearing was canceled as was the testimony from several witnesses. Instead, Dent appeared on video from the Collin County jail before District Judge James Fry for his sentencing. The video jail appearances are routine in cases that have been previously settled and save the county the costs of transporting inmates from the jail to the courthouse....

As part of the plea deal, Dent was sentenced to the previously agreed upon eight years in prison on the DWI charge from October 2012 in Allen. In that instance, Dent’s ex-girlfriend called police because Dent was trying to force her out of her car. He then rammed her car into her neighbor’s garage door with his F150 pickup. He was also sentenced to the maximum penalty of 10 years for the DWI charge from May 2013. In that case, a passer-by reported Dent driving recklessly in Allen before stopping at a Walgreens. Police were waiting for Dent when he came out of the store carrying a case of beer and a bottle of wine.

Because he skipped out on his sentencing hearing, Dent was also charged with two counts of bail jumping and failure to appear. He pleaded guilty Wednesday to both third-degree felony charges and was sentenced to the maximum 10 years in prison. All four prison sentences will be served at the same time. Dent will also get credit for time served.

As part of the plea agreement, prosecutors were able to declare Dent’s vehicle as a deadly weapon in both DWI charges. That finding means Dent will be required to serve at least half of his prison sentence before he is eligible for parole. Dent still has a DWI charge pending in Williamson County after he failed to appear for sentencing. In that case, Dent crashed into a tollbooth along State Highway 45 in Austin. He also has an active warrant in Garland County, Ark., for failing to comply with court orders after his DWI conviction there in 2007.

Dent’s drunken driving convictions date back to 1983 and include convictions in Arkansas, Oklahoma and Nevada as well as the Texas counties of Denton, Dallas, Brazos, Williamson and Collin. His court records over the years include multiple references for failing to appear in court, violating provisions for community supervision and continuing to drink alcohol. He drove while his driver’s license was suspended. And on several occasions, the only thing that kept him from driving drunk was the court-ordered ignition interlock device that prevented his vehicle from starting when it detected alcohol on his breath. Bonds were revoked, he got re-arrested and he posted new bonds....

In a jail interview last week, Dent said he was an alcoholic. He also declared he’d had his last drink before crossing the border. This will be his third entry in the state prison system. Dent was previously sentenced to eight years in prison after violating probation on a felony DWI charge out of Brazos County. He served nearly 22 months before being paroled. He was re-incarcerated for another three months after violating the terms of his parole.

Dent’s 10 convictions stood out largely because they came during his successful book career. But he’s far from alone. More than 1.1 million people were arrested across the country on charges of driving while intoxicated in 2013, according to the latest FBI crime statistics.

For an even fuller account of this defendant's life and times, the Dallas Morning News recently published this profile headlined "Jim Dent: The man, his books and the bottle."

April 16, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Canadian Supreme Court declares gun mandatory minimums unconstitutional

A helpful reader alerted me to a notable sentencing ruling from our northern neighbor reported in this press account headlined "Supreme Court quashes mandatory minimum sentences for gun crimes: Court upholds Ontario ruling that struck down mandatory minimum sentences of 3 and 5 years." Here are the basics:

The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.

The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.

Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...

Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."

"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.

Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."

The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.

The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.

The full ruling from the Supreme Court of Canada is available at this link.

April 15, 2015 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack

"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"

The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:

This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers.  Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development.  Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.

Section IV outlines the current scholarly debate surrounding the use of public shaming punishments.  Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories.  Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.

April 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 14, 2015

Interesting recent Buckeye death penalty headlines (despite extended extended moratorium)

After Ohio Governor (and future GOP Prez candidate?) John Kasich and other executive officials put off all Ohio executions for the entire 2015 calendar year, I figured Ohio would not be make all that much death penalty news until at least 2016.  But, as these recent local headlines help highlight, an executive branch moratorium on executions does not stop others from taking about the death penalty in the Buckeye state:

April 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tough (and record-long) sentences for cheating Atlanta school administrators

Images (7)As reported in this lengthy USA Today article, "3 in Atlanta cheating scandal to serve 7 years prison," today was final sentencing day in a high-profile and seemingly unique state white-collar criminal case from Georgia.  Here are the details (with my emphasis added):

In a testy courtroom Tuesday, a judge presided over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests, telling three defendants that they would serve seven years in prison.

Despite the contentions from Sharon Davis-Williams' and Tamara Cotman's lawyers that they had maintained their innocence and are first offenders, Judge Jerry Baxter of Fulton County Superior Court said that each is being sentenced to 20 years in prison, will serve 7 years of incarceration with the balance as probation and also must do 2,000 hours of community service and pay a $25,000 fine.

"She's convicted, and she's at the top of the food chain," Baxter said of Davis-Williams, who along with Cotman and Michael Pitts were regional directors in the city's school system during one of the country's largest cheating scandals. "Your client ran numerous fine educators out. She non-renewed them."

Pitts received the same sentence and also was sentenced to five years, to run concurrently, on a charge of influencing a witness. The sentences were higher than prosecutors' recommendations.

Although Baxter initially did not want to consider the top administrators as first offenders, he decided to allow that status for all 10. That will allow each to have their convictions erased upon completion of their sentences.

Two of those convicted, former testing coordinator Donald Bullock and former teacher Pamela Cleveland, decided to take a plea deal that prosecutors had offered. Cleveland became the only one of the former educators to elude jail time.

Any deals required an acceptance of responsibility from the former educators, District Attorney Paul Howard said. Bullock, who took the deal before Tuesday's hearing, was sentenced to five years probation, will serve six months in jail on weekends, give 1,500 hours of community service and pay a $5,000 fine.

Cleveland, who apologized in court, was sentenced to five years probation including one year 7 p.m.-to-7-a.m. home confinement, 1,000 hours of community service and a $1,000 fine. Prosecutors took into consideration her elderly parents, so she will be able to serve her home confinement at their house or any hospital where either might be a patient.

Bullock also will apologize and both waived their right to appeal. All were sentenced Tuesday after the judge in the case gave them extra time to negotiate deals with prosecutors.

The former educators' community service will be served at Atlanta's jail teaching inmates, some of whom are the victims of the problems in Atlanta's school system, Baxter said. "I think there were hundreds, thousands of children who were harmed," the judge said. "That's what gets lost in all of this."

Some of the defendants' lawyers pushed back at the expectation of a deal being reached, causing Baxter to cut them off and say he was ready to deliver his sentences immediately. He had delayed sentencing after learning that Howard had been talking to defense attorneys and thought the case could be resolved with sentencing deals. "I just wanted them to get a taste of it," Baxter said of the sentences he had in mind after he quickly delivered Davis-Williams' and Cotman's punishment. "Apparently, that didn't quite move them."

In an exchange with Pitts' lawyer, Baxter said he was worried that some of those convicted were more remorseful that they were caught than they were about cheating young students out of an education. "They should have rose up and said no," the judge said of pressure to alter standardized test scores. "They didn't, and here we are."

The former educators were convicted April 1 on a racketeering charge. Some faced additional charges. They had been accused of falsifying test results to collect bonuses or keep their jobs in Atlanta Public Schools. In all, 35 educators were indicted in 2013 on charges including racketeering, making false statements and theft. Many pleaded guilty and some testified at the trial.

A state investigation found that as far back as 2005, educators fed answers to students or erased and changed answers on tests after they were turned in. Evidence of cheating was found in 44 schools with nearly 180 educators involved, and teachers who tried to report it were threatened with retaliation.

This is fascinating stuff both with respect to sentencing procedure and sentencing outcomes, especially because it seems that the failure to show remorse and waive rights to appeal explains the length of the various sentences as much, if not more, than the actual criminal conduct.  Wowsa (and perhaps the basis for some interesting future appeal issues).

As the title to this post indicates, I would guess these sentences are harshest ever given to cheating school administrators.  That said, it does seem the behavior here was maybe the worst, long-running examples of school cheating ever prosecuted criminally.

April 14, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Senator Grassley again expresses interest in talking about federal criminal justice reform

Senator Charles Grassley is right now arguably the most significant and most important player in all on-going debates over federal sentencing and criminal justice reform.  As Chair of the Senate Judiciary Committee, Senator Grassley can (and seems eager to) block the advancement of any and every federal criminal justice reform bill that he does not personally favor.  

Consequently, even if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure— at least until 2017, and perhaps after that if the GOP retains control of the Senate — that federal reform bills do not even get a committee hearing, let alone a committee vote.   Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars.  Frustratingly, that is how our democracy now functions.

Bill Otis, whom I believe has Senator Grassley's ear and with whom he shares many sentencing views, predicted after the 2014 election that Senator Grassley's position as Judiciary Chair all but ensured that there would be almost no chance of significant federal sentencing reform until at least 2017.  But this new piece in Roll Call, headlined "Grassley Resistant to Criminal Justice Overhaul, but Says He’s Willing to Talk,"  provides at least of glimmer of hope that this old Senate dog might be open to some new sentencing tricks.  Here is an excerpt:

Grassley has made no bones about his passionate opposition to reducing mandatory minimum prison sentences, as proposed by Republican Sen. Mike Lee of Utah and Senate Minority Whip Richard J. Durbin of Illinois in the so-called Smarter Sentencing Act (S 1410). On the floor, Grassley has called rolling back such fixed sentences “dangerous,” “ill-conceived” and “indefensible.” Last year, he tried to gut a version of the bipartisan bill, which the Obama administration backs, with an amendment in committee.

Even so, Grassley told CQ Roll Call that he’s ready to start looking for common ground with the bill’s supporters. What’s been missing, he adds, is an invitation — from Obama, from the senators sponsoring the bill, from their staffs — from anyone willing to start a conversation. “First of all, nobody’s asked me even though for three months, including my speech last week, I said I would be glad to meet people about what we could possibly do because I’m open to some reform,” Grassley says.

Juvenile justice is among his top legislative priorities, and he has said he plans to co-sponsor a bill with Rhode Island Democrat Sheldon Whitehouse to reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. That law has not been reauthorized since 2002.

Grassley says he thinks there could be some reductions in mandatory minimums, but at the same time he wants to see increases in minimum sentences in other areas, such as child pornography and white-collar crime. He has also cited the need to prevent abuses in the forfeiture of civil assets, and to ensure that offenders receive fair representation. “It may just be time” to start criminal justice talks, Grassley says.

Long story short: anyone and everyone seriously interested in the passage of federal criminal justice reform anytime soon would be wise to invest considerable time and energy figuring out exactly what Senator Grassley is now willing to talk about.  Notably, as stressed in this prior post, Senator Grassley recently penned a strong commentary extolling the importance of transparency and accountability in the federal criminal justice system, and I urge advocates to highlight for Senator Grassley and others how statutory mandatory minimums and other laws that empower and enhance federal prosecutorial overreaches significantly undermine these important goals.

A few prior related recent posts:

April 14, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert"

The title of this post is the title of this interesting and timely new piece on SSRN authored by Peter Westen. Here is the abstract:

In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence — death — that state officials had been lauded in Europe for outlawing three years earlier.

A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty.  It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”).  The latter doctrine is a counterpart to the ex post facto prohibition.  Both doctrines both concern retroactivity in criminal law, but they are the converse of one another.

The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely.  In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment.  He concludes that, although doing can be morally justified under limited circumstances, typically it is not — a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

April 14, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 12, 2015

"Defending the Jury: Crime, Community, and the Constitution"

9781107650930The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:

This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive.  Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system.  It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:

One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.

Why are plea deals so common?  Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement.  For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence.  In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.

There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise.  But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done.  One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”

April 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Considering one defendant getting a second look due to Miller retroactivity

10juvenile-1-master675One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP.  Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant.  The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:

Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.

He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.

From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.

At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead.  Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.

But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....

The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.

Ten states, including Illinois, are applying the standard to pre­2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive.  The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....

Here and around the country, victim rights groups have strongly opposed the reopening of past sentences.  “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a co­founder and board member of the National Organization of Victims of Juvenile Murderers.

She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16­-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said.  “Our mother was devastated.”

A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop­-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone. 

Re­creating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.

Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....

Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.

The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence.  Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...

The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court.  During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.

April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 10, 2015

Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.

April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Penalty phase in Boston Marathon bombing capital trial scheduled to start April 21

As reported in this NBC News piece, the "penalty phase in the federal trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev will begin on April 21, a judge ordered Friday." Here is more:

The jury has been asked to come to court next week — on April 14 — to receive a brief set of instructions. This year's Boston Marathon will be held on April 20. "The defendant has requested that the penalty phase commence in approximately two weeks so as to, among other things, allow the defendant additional time to resolve outstanding logistical issues with a number of potential witnesses. It is not uncommon for there to be a brief recess between phases in a capital case," Judge George O'Toole said in the order.

Tsarnaev, 21, was convicted for his role in the April 15, 2013, twin bombings that killed three people and injured 260 others at the Boston Marathon — the worst terror attacks on American soil since 9/11. A jury found him guilty Wednesday on all 30 criminal counts. Seventeen of the 30 counts carry the possibility of the death penalty.

This related NBC News piece has some interesting poll data reported under the headline "Americans Divided Over Death For Boston Bomber Dzhokhar Tsarnaev, Poll Finds."

Recent related post:

April 10, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

Long-time readers may recall the remarkable state sentencing story, covered here and here,  involving Daniel Enrique Guevara Vilca.  In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children.  On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today.  Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):

Daniel Guevara-Vilca appeals his convictions for possession of child pornography.  Owing to a discovery violation by the State, we reverse and remand for a new trial....

During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count.  The file names generally contained descriptive terms.  All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program.  The files were found in thirteen different folders on the computer, including the recycle bin....

The jury returned guilty verdicts on all 454 counts.  Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment.  The trial court sentenced Guevara-Vilca to 454 concurrent life terms....

Guevara-Vilca raises multiple issues on appeal.  We agree with his assertion that the trial court erred in its handling of the State's discovery violation.  The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....

We reverse Guevara-Vilca's convictions and remand for a new trial.  This renders moot, for now, the sentencing issue raised on appeal.  Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment.  Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand.  But the issue, if raised, deserves serious consideration by the sentencing court.  Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.

Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors.  Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's."  Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).

Prior related posts:

April 10, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Highlighting and assailing Prez Obama's "weak approach to pardons" and Clemency Project 2014

Today's Washington Post has this potent new commentary authored by George Lardner Jr. and P.S. Ruckman Jr. headlined "Obama’s weak approach to pardons." Here are extended excerpts:

When it comes to the pardon power, President Obama is still more talk than action. According to the most recent Justice Department data, he has granted only one pardon for every 29 petitions that have come before him, fewer than any of the past seven presidents.  Last week, he signed 22 commutations, but his record on those is even more dismal because he has such a staggering backlog, the biggest of any president in U.S. history.  It is a backlog that he and his administration invited.

But you wouldn’t know that from his rhetoric.  In a recent interview with Buzzfeed, the president said, “We’ve revamped the pardoning office in the Justice Department because, traditionally, we weren’t reaching a lot of nonviolent offenders who, if they received a pardon, perhaps would be in a better position to get employed.”...  What he didn’t say is that he has let those applications pile higher and higher.

The Justice Department named a new pardon attorney in November, and her overburdened office now has more lawyers than before — but if that was the “revamping,” it has yet to produce significant results.  Despite receiving unprecedented numbers of petitions, Obama has granted only 64 pardons and 43 commutations.  Only six other presidents have been less merciful, and most of those served a single term or less.

Without counting a program called Clemency Project 2014, which makes his record worse, Obama has granted just one of every 779 commutation petitions addressed to him.  Every president since Richard Nixon (who approved one of every 15 commutation petitions) did better....

Obama’s “new approach” to pardons remains just a promise.  More than a year ago, the Justice Department announced that Clemency Project 2014 would aim to find federal prisoners who deserved a commutation, which reduces the severity of a sentence.  But pardons, which forgive applicants for their crimes and restore their civil rights, were excluded.

This drive for more commutations has become a disaster, notwithstanding last week’s action.  When the project was announced in early 2014, then-Deputy Attorney General James M. Cole asked the legal profession for help in composing “effective and appropriate” petitions for inmates serving harsher sentences than they would have received “if convicted of precisely the same offenses today.”  Since then, The Post reports, more than 35,000 inmates — some 16 percent of the federal prison population — have asked for commutations under the initiative. And since then, Obama has commuted just 34 sentences.

More than 1,000 lawyers at more than 300 law firms have offered to participate in Clemency Project 2014. Yet little more than 5,000 of the 35,000 applications have been assigned to a lawyer....

The unduly restrictive rules spelled out by Cole last spring are an even larger problem. It should not be too difficult for prisoners to show they got a stiffer sentence than they would have received today, but that’s not enough.  Under the criteria, a prisoner must have served at least 10 years, have no significant criminal history and have had no involvement with gangs, cartels or organized crime.  The program also penalizes prisoners who previously asked for commutations by placing Clemency Project 2014 petitioners in line ahead of them.

Just as troublesome is the fact that the critical decisions about whether the rules have been met have been farmed out to private organizations — the ACLU, Families Against Mandatory Minimums, the American Bar Association and the National Association of Criminal Defense Lawyers.  These are fine groups, but the pardon power is supposed to be reserved for the president, and saying no, which these private agencies can do, is as much an exercise of that power as saying yes.

To Obama’s credit, he wrote a letter to the 22 inmates whose sentences he commuted. All of them had been convicted of nonviolent drug offenses, in many cases under punitive rules no longer in effect.  But there must be hundreds if not thousands more who are just as qualified. It was a nice try by the White House to say last week that Obama’s commutation record was now better, numerically, than George W. Bush’s. What it didn’t say was that Bush’s record on commutations (11) was one of the worst in history and that he granted almost three times as many pardons as Obama has (188 to 64).

President Obama keeps referring to the Justice Department as though it were in charge of the process while he remains a frustrated bystander.  He conceded in South Carolina that “we have a pretty strict set of criteria” for grants of clemency, but he spoke as though he was handcuffed by those criteria (when, in fact, he isn’t).  Criticisms of the pardon process usually focus on the prosecutorial mindset of officials at Justice and blame them for rejecting too many deserving applications.  It’s time for the president to take the heat and stop letting Justice be the scapegoat.

April 10, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, April 09, 2015

Effective coverage of legal land mine created by DOJ spending restriction in medical marijuana cases

As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Today, the New York Times has this extended and informative discussion of this federal congressional directive and its uncertain meaning and impact four months after its enactment.  The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:

In December, in a little­-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

In the most advanced test of the law yet, [medical marijuana defendant Charles] Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.”  In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”

But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.

With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....

The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance.  “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.

Mr. Farr said, “For the feds to come in and take this hard­line approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.”  The sponsors said they were planning how to renew the spending prohibition next year.

Some prior related posts:

April 9, 2015 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 08, 2015

Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)

As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in.  (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.)  But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:

On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.

At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....

At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.

DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.

Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.

DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.

It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.

But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.

In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.

There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.

DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.

April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"

The quoted portion of the title of this post is the headline of this New York Times report on the outcome of the guilt phase of the on-going capital trial of the Boston Marathon Bomber, and the preamble to that quote is my (pithy?) commentary about what this means. Here are the basics on what has happened so far and what is still forthcoming:

In the silent well of Courtroom Nine, a clerk read out the verdicts: Guilty. Guilty. Guilty. The word echoed in the courtroom as the clerk pronounced it 30 times, once for each of 30 counts.

By the end of the 25­minute roll call of charges, a federal jury here had left no doubt how thoroughly it sided with the government against Dzhokhar Tsarnaev in connection with the 2013 bombings at the Boston Marathon. Mr. Tsarnaev, 21, a failing college student and the youngest child in a dispersed immigrant family, stood without expression, his arms folded in front of him, flanked by his lawyers.

The verdicts set the stage for a second, more contentious phase of the trial in which the same jury will decide whether to sentence Mr. Tsarnaev to life in prison or death....

There was little doubt that the jury would find Mr. Tsarnaev guilty of most charges; his lawyers have admitted that he had been involved in the bombings, and they put on a minimal defense, calling four witnesses who testified for five hours. The government, by contrast, called 92 witnesses over 15 days. Still, in the first phase of the trial, the defense laid the groundwork for the sentencing phase, casting their client as subordinate to his older brother, Tamerlan, and less culpable for the crimes. The defense team’s goal now is to explain mitigating factors in hopes that jurors will sentence Mr. Tsarnaev to life in prison.

After the verdict was read, the judge, George A. O’Toole Jr. of Federal District Court here, told the jurors that the case would proceed to a second, penalty phase that could begin as early as next week. He cautioned the jurors that they were still “an active jury, subject to your oath,” and to not discuss the case with anyone....

The defense hopes to present mitigating circumstances that show him as less culpable than his brother. It will flesh out details of Mr. Tsarnaev’s life and family history, which includes his forebears being expelled by Stalin from Chechnya in 1944 and ending up in Kyrgyzstan. His family settled in Cambridge, Mass., in 2002. As his parents divorced and returned to Russia, Mr. Tsarnaev, who became an American citizen on Sept. 11, 2012, fell increasingly under the sway of his older brother.

Just as defense lawyers seek to impress the jurors with the reasons they should spare Mr. Tsarnaev’s life, the prosecution will impress upon them the consequences of his murderous actions. Survivors of the blasts and the families of victims are expected to testify in this next phase, as they did in the first, this time detailing the physical and emotional effects of the bomb blasts on their lives. Others are expected to discuss how the crime gripped the Boston area in fear for five days.

This news broke as I was teaching my sentencing class this afternoon, and I predicted that defense attorneys may urge that the penalty phase of the trial not begin until May, at the earliest, partially because next week will mark the two-year anniversary of the bombing and the following week is when next Boston Marathon is schedules. I suspect the defense will contend that these realities create too much of a prejudice risk if the penalty phase starts ASAP, and I think it is possible federal prosecutors might not oppose any requested delay in order to avoid creating another possible appellate issue if the jury returns a death verdict.

April 8, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Larry Flynt hustles his way into Missouri litigation over lethal injection

As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:

A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.

Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.

Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.

Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....

Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....

“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.

April 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 07, 2015

"Miller V. Alabama and the Retroactivity of Proportionality Rules"

The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN.  Here is the abstract:

In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors.  What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided.  In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not.  The Supreme Court is all but certain to decide the issue in the near future.

I make two primary arguments in this Article.  The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.”  The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee.  As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality.  I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded.  Proportionality rules should therefore be afforded something close to a presumption of retroactivity.

Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class.  Coincidence?

April 7, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

New Urban Institute report examines challenges posed by mentally ill offenders

The Urban Institute today released this significant new report titled "The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis." Here is an excerpt from the first few paragraphs of the report's executive summary (with few references omitted):

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health.  According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population.  An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.  These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.  Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly.  In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.

Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic.  There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders.  This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.

This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons.  It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges.  Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders....

April 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

"What’s the right way to compensate someone for decades of lost freedom?"

The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions.  Here is an excerpt:

One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard.  In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.”  He noted, “European countries have long recognized that such indemnity is a public obligation.”  But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.”  It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.

There is still no consensus about the value of lost time.  Missouri gives exonerees fifty dollars a day for time served, California twice that much.  Massachusetts caps total compensation at half a million dollars.  In Maine, the limit is three hundred thousand; in Florida, it’s two million.  The variation is largely arbitrary.  “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me.  In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979.  “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.”  Most states levy taxes on payment.  Twenty states have no compensation statutes at all.

Fifteen hundred and seventy-five people have been exonerated in the U.S.  The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.”  These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors.  (The same legal principle is at issue in federal suits brought by people who have been shot by the police.)  In such cases, the potential damages are unlimited.  But the standard of proof is high.  “Police officers have qualified immunity,” Garrett told me.  “They can violate your constitutional rights — reasonably but not egregiously.”

April 7, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Saturday, April 04, 2015

In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)

GrassleyWith respect to sentencing policy and procedure, I frequently disagree with the current Chair of the Senate Judiciary Committee, Charles Grassley.  But on the topic of federal court transparency, I surmise that Senator Grassley and I have very similar views as evidence by this new National Law Journal op-ed penned by the Senator.  The piece is headlined "Legislation Allowing Cameras in the Courtroom More Important Than Ever, and here are excerpts:

In [the Boston Bombing] high-profile case and countless others, the mechanics of our criminal justice system work day in and day out to provide equal justice under the law.  Before a jury of peers, prosecutors make the government's case on behalf of the people, and the defense works to give the accused a fair trial.  America's system of justice, including our bedrock constitutional principles guaranteeing due process, a fair and speedy trial, and the right to counsel, is a tangible right of citizenship that too often goes unnoticed. That's because a majority of Americans aren't able to look under the hood to see it — at least not in federal courts, which ban cameras from their courtrooms.

The federal trial in Boston carries significant public interest.  And yet, the ban on cameras disallows the public to bear witness to the public proceeding.  Courtroom sketches and tweets from reporters arguably don't do justice for most people, especially those who have a keen interest to see justice served.

In this day and age when the American public is hard-wired to access what they want to see, when they want to see it, it's hard to square the injustice of essentially banning broad civic engagement from our judicial system by banning cameras from the federal courtroom.

Blockbuster trials certainly ­generate a lot of attention.  They renew ­interest in something I've been working to achieve for nearly two decades.  And that is to unlock the federal courtroom door to cameras.  As a co-equal branch of the federal government, the federal judiciary serves a fundamental function in our ­system of self-government.  It alone interprets the constitutionality of laws passed by Congress and managed by the executive branch.  Although removed from electoral politics by constitutional design, the federal judiciary and Article III judges are not part of a royal class or monarchy.  The federal judiciary is the custodian of constitutional rights and providing equal justice under the law. If anything, the federal judiciary ought to be the first to throw open the shutters to bring this extraordinary branch of government to life for ordinary Americans.

As a longtime crusader for more transparency, I've worked to spread sunshine through the halls of the federal government.  Transparency, and the accountability that comes with it, renews credibility in our institutions of government and strengthens our free and open society.  The same goes for civic engagement.  Allowing courtroom proceedings to be broadcast would give more citizens an opportunity to develop a better appreciation for the federal judiciary and how the wheels of justice serve the public good.

With very few exceptions, the public's business ought to be public.  Period.  My leadership on this issue has prompted a few steps in the right direction, such as the adoption of pilot programs to allow cameras into some federal courts.  The most recent program was launched in 2011 and includes 14 federal trial courts.  So far, the sky has not fallen and the program will wrap up this summer.  The courts will report back to Congress next year.

Each of the 50 states allows some level of camera access in their courtrooms.  As far as I know, the recording and broadcasting of state trials haven't turned the carriage of justice into a pumpkin.  To me, it's a miscarriage of justice that the 20th century courtroom camera ban still exists in the 21st century at the federal level....

[M]y bipartisan bill would allow the presiding judge discretion to protect the privacy of witnesses and private conversations among clients, lawyers and the judge.  It prohibits the televising of jurors and includes measures to protect due process rights.  The bipartisan verdict on this issue exceeds reasonable doubt. Allowing cameras into the federal courtroom would foster better civic engagement with our courts of law and, ultimately, strengthen the court of public opinion about the integrity of our judicial system in American society.

The burden of proof is clear.  It's time to lift this arbitrary barrier to transparency.  Let's end the camera ban and raise the bar on good government.

I could not agree more strongly with this forceful assertion by Senator Grassley: "With very few exceptions, the public's business ought to be public. Period."  Now I just wish Senator Grassley would come to understand that his righteous commitment to transparency and accountability in the federal criminal justice system is deeply undermined by his steadfast support for federal mandatory minimum sentencing statutes and the extraordinary hidden power they place in the hands of unelected federal prosecutors.

Existing federal mandatory minimum statutes enable federal prosecutors to make profoundly consequential sentencing decision behind closed doors without any explanation, transparency or accountability. The US Sentencing Commission and others have frequently documented the profound sentencing impact of the hidden charging and bargaining decisions made by federal prosecutors using mandatory minimum sentencing provision.  It is near impossible to even know what decisions are being made by prosecutors in the use of mandatory minimum sentencing provisions, let alone to assess effectively the legitimacy of the factors employed by prosecutors in their charging and bargaining decisions, because prosecutors need never explain or justify these sentencing decisions in any way.

My general disaffinity for federal mandatory minimum sentencing statutes is deeply based in my strong belief that "the public's business ought to be public."  Because it seems Senator Grassley is truly and deeply committed to the values of transparency and accountability in the federal criminal justice system, I hope he will at some point come to understand how his support for federal mandatory minimums problematically disserve these critical values.

April 4, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, April 01, 2015

"A Republican Governor Is Leading the Country's Most Successful Prison Reform"

The title of this post is the headline of this notable new piece from The New Republic.  Here are excerpts:

During his second inaugural address this past January, Georgia Governor Nathan Deal shared the story of Sean Walker. After serving 12 years of a life sentence for murder, Walker was paroled in 2005 and began working in the governor’s mansion while in a state transitional center. At the time of Deal’s address, Walker was working for Goodwill as a banquet catering sales coordinator and was nominated for Goodwill International Employee of the Year. As of January, Walker was planning to take college courses with the hope of becoming a counselor.

Deal, who got to know Walker at the governor’s mansion, shared the story to underscore his own “message to those in our prison system and to their families: If you pay your dues to society, if you take advantage of the opportunities to better yourself, if you discipline yourself so that you can regain your freedom and live by the rules of society, you will be given the chance to reclaim your life.” He continued, “I intend for Georgia to continue leading the nation with meaningful justice reform.”

That last sentence could seem at best like optimism, and at worst like hyperbole. However, one could reasonably argue that Georgia is doing more to reform its criminal justice system than any other state in the country — from sentencing to felon employment after release to juvenile detention.

Over the last four years, mandatory sentencing minimums have been modified, and judges’ discretion in sentencing has been expanded. The adult prison population has been given enhanced access to educational resources, including a program that enables two charter schools in the state to go into prisons to teach inmates, and those participating earn a high school diploma instead of a GED. (Studies suggest that some recipients of a GED tend not to fare any better in employment prospects than high school dropouts do.)

In addition, inmates with felonies applying to work for the state no longer have to check a box on their job applications that discloses their criminal histories and would often disqualify them from being considered for a job from the outset. “We banned the box,” said Deal, “It is not going to affect them getting an interview.” The state has also invested $17 million into measures aimed at reducing recidivism and rehabilitating low-risk, nonviolent offenders — including expanding accountability courts like those for drug use and DUIs, and funding community-based programs that have already proven to be more cost-effective than a prison sentence and are designed to reduce crime in the long run....

Some, like Vikrant Reddy, a senior policy analyst at Right on Crime and at the Texas Public Policy Foundation’s Center for Effective Justice, label Georgia’s criminal justice reforms conservative because they are saving the state millions, putting them in line with conservative fiscal values. Others, like Alison Holcomb, the national director of ACLU’s Campaign to End Mass Incarceration, call the reforms expansive for their holistic agenda—with improving educational and re-entry opportunities for inmates at the top of the list. The reforms have been called innovative, though some argue that it isn’t the reform initiatives themselves, so much as the way they’re being applied together that is unprecedented.

April 1, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism"

The title of this post is the headline of this notable new article by always interesting Christopher Slobogin. Here is the abstract:

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice — to wit, retributivism and adversarialism. This article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system where retribution is no longer the lodestar of criminal punishment, and where party-control of the process is no longer the desideratum of adjudication.

If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.

April 1, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 30, 2015

"Monitoring Youth: The Collision of Rights and Rehabilitation"

The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime.  In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals.  But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness.  Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.

This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts.  After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.

Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny.  The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits.  This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.

March 30, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

California and Ohio facing capital congestion without a functioning execution chamber

Theses two local stories concerning death row realities in two states strike a similar note:

From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:

With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room.  Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison.  The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.

California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel.  Through it all, the death row population has grown from 646 in 2006 to 751 today.

From Ohio here, "Backup of killers awaiting execution is building."  This story starts this way:

Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building.  There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]

Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.

March 30, 2015 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement

In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here).  The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."  

But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring.  Here are key passages from the ruling in Grady:

Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender.  See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013).  Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes.  He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures.  Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....

The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling].  And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.  That theory is inconsistent with this Court’s precedents....

[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information.  If the very name of the program does not suffice to rebut this contention, the text of the statute surely does....  The State’s program is plainly designed to obtain information.  And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program’s constitutionality.  The Fourth Amendment prohibits only unreasonable searches.  The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.  See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable).  The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.

March 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

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 (1) | 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