Wednesday, June 18, 2014
"Sentencing Terrorist Crimes"
The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:
The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.
Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.
The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.
June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack
Monday, June 16, 2014
"Lethal Injection Secrecy and Eighth Amendment Due Process"
The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:
The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.
This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.
As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.
After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?
A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State. Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.
While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up. Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade. But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.
For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely. As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days. If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual. But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.
Some recent related posts:
- First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs
- Ugly Oklahoma execution leading to calls for national moratorium
- Sampling of reactions and commentary in wake of Oklahoma's execution problems
- New details emerge concerning ugly Oklahoma execution
- Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- Has the ugly execution in Oklahoma succeeded in slowing US machineries of death?
Thursday, June 12, 2014
Florida Supreme Court upholds state law to speed up capital appeals
As reported in this local article, headlined "‘Timely justice’ death-penalty law upheld," the Florida Supreme Court had a notable state capital appeals ruling today. Here are the basics:
The Florida Supreme Court on Thursday upheld the constitutionality of a 2013 law that legislative supporters said would reduce delays in carrying out the death penalty. Justices, in a unanimous decision, rejected arguments that the so-called “Timely Justice Act” would be an unconstitutional infringement on the court system’s authority and separation of powers, and violate due-process and equal-protection rights.
In a concurring opinion, Justice Barbara Pariente emphasized that the law would not affect the Supreme Court’s “solemn responsibility” to block executions if necessary to ensure that defendants’ rights are protected.
“[This] court is still constitutionally entrusted with the duty to issue a stay of execution if there is a meritorious post-conviction claim pending or, if at the time the warrant is signed, the defendant brings a successive post-conviction challenge that casts doubt on his or her guilt, the integrity of the judicial process, or the validity of the death sentence imposed. . . . In my view, that remains the essential fail-safe mechanism this court may utilize when necessary to ensure that the ultimate punishment of the death penalty is inflicted in a manner that fully comports with the constitution,” wrote Pariente, who was joined in the concurring opinion by justices Jorge Labarga and James E.C. Perry.
With some convicted murderers on Death Row for 30 years or longer, lawmakers in 2013 said the changes would help carry out justice more quickly. After Gov. Rick Scott signed the bill, for example, House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach, posted a Twitter message that said, “Several on death row need to start picking out their last meals.”
But the details of the law, which touched on issues such as death warrants, the clemency process and legal representation for Death Row inmates, have proved to be far more complex than the legislative debate. Scott also pushed back against characterizations that the law would “fast-track” death-penalty cases through the court system.
Attorneys for dozens of Death Row inmates filed the constitutional challenge last year, with the case focusing on four disputed parts of the law, according to Thursday’s opinion, which was written by Justice R. Fred Lewis. A key issue focused on a requirement that the Supreme Court clerk notify the governor when Death Row inmates have exhausted initial state and federal appeals. The law orders the governor to sign death warrants for such inmates within 30 days and to direct the warden to schedule their executions within 180 days — but only after the executive clemency process has been completed.
The full ruling can be accessed at this link.
Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines
As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.
Federal public defender Sarah Gannett had this to say:
I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal. Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.
There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety. At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions). Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation. Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal. Similar arguments can be made about the enhancements the DOJ proposes as limiting.
Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday. You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website. Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).
Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized. In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns. The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases. This approach is more principled than the limitations suggested by the Department. It is discussed in the CLC's statement, which also was posted. (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload. See our statement at pp. 9-13, 14-15.)
Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.
Former US Pardon Attorney Margaret Colgate Love had this to say:
I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it. I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.
Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise". Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above. Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.
It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them. Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies. Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.
Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum. It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.
If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more. It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.
I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.” Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.
I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive. I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.
Some recent related posts:
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, June 11, 2014
Fascinating account of post-Miller realities for juve killers with new chance for eventual freedom
At Slate, Beth Schwartzapfel has this terrific new essay about what might be called "life after Miller" for juvenile murderers who now have a possible chance for release from a life prison sentence as a result of the Supreme Court's modern Eighth Amendment jurisprudence. The piece merits a full read, and it carries the headline, "'Where Do You Think That Rage Came From?' To get parole, people sentenced to life as juveniles must reckon with their pasts." Here is how the piece gets started:
Last week, the Massachusetts Parole Board announced that Frederick Christian might go home. He would be one of the first people to be released based on the Supreme Court’s 2012 ruling, in Miller v. Alabama, finding mandatory life sentences for juveniles unconstitutional.
Christian was 17 when he was involved in a drug robbery that ended with the shooting deaths of two men. Now he is 37. In prison, he got his GED, enrolled in violence prevention programs, and converted to Islam. The five-times-a-day prayers, he said, “taught me discipline.” He has maintained a steady job cleaning the prison, gone regularly to Narcotics Anonymous and Alcoholics Anonymous meetings, and helped to grow vegetables for the homeless.
Across the country, some 2,500 people are serving life without parole sentences for crimes they committed as juveniles. Some have already served 30 years or more. Yet it’s likely few of them will get out. Before he can be paroled, Christian still has to complete a behavior modification program and live for a year in a minimum security prison. And his hearing is one of only a handful like it around the country since Miller. The Supreme Court said that the young people’s capacity to mature and change entitle them to a second chance. But lower courts, legislatures, and parole boards have more incentive to maintain the status quo than to show mercy — to follow the letter of Miller but not its spirit.
That’s because letting more prisoners like Christian go free requires a return to an idea that the country largely abandoned a generation ago: that criminals can be rehabilitated, and there is a limit to just retribution. As costs rise for the growing prison population, legislators from every corner of the political map are now calling for a softening of sentencing laws. But legislation about the future is one thing. Giving a second chance to people who have already been sentenced for doing terrible things is another.
Eleventh Circuit holds USSC report criticizing CP guideline does not make within-guideline CP sentences unreasonable
Though not especially surprising or really ground-breaking, the Evelenth Circuit's ruling today in US v. Cubero, No. 12-16337 (11th Cir. June 11, 2014) (available here), rejecting an attack on a lengthy within-guideline child porn sentence still seems noteworthy and blog-worthy.
As detailed in the lengthy Cubero opinion, the defendant not only made much of mitigating personal factors, but also stressed in support of a below guideline sentence the US Sentencing Commission's recent report to Congress detailing problems with its own guidelines and a letter from a DOJ official criticizing the current child porn guidelines. But the district judge opted to impose a within-guideline sentence of 12.5 years, and the Eleventh Circuit panel saw this decision as a permissible exercise of the district court's sentencing discretion.
Here is the heart of some of the panel's discussion of the limited impact and import of the USSC's criticism of its own guidelines (with cites mostly removed):
[The Sentencing Commission's Child Porn to Congress] (1) does not alter the district court’s duties to calculate the advisory guidelines range and to impose a sentence after considering the § 3553(a) factors, (2) does not limit the district court’s discretion to determine what weight to give to each § 3553(a) factor, and (3) does not require the district court to vary from the § 2G2.2-based guidelines range. See 18 U.S.C. § 3553(a)–(b). The district court was empowered with discretion to consider Cubero’s downward-variance arguments, many of which are now captured by and reflected in the 2013 [USSC CP] report, but the court was not compelled to vary downward....
Contrary to Cubero’s arguments, the 2013 report does not heighten the district court’s statutory duty to state the reasons for imposing a particular sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S. Supreme Court’s or this Circuit’s precedent regarding the district court’s obligations under 18 U.S.C. § 3553(c); namely, that a district court’s decision to apply the guidelines to a particular case does “not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).
Based on current reasonableness jurisprudence, this Eleventh Circuit ruling is not out of the mainstream. If circuits were inclined, as I think they should be, to conduct reasonableness review in a more substantive and rigorous manner, then perhaps defendants might have a chance to prevail with claims that the 2013 USSC report assailing the existing child porn guidelines renders within-guideline CP sentences inherently suspect. But because reasonableness review has tended to be so very deferential, even when all agree that certain guidelines are so very flawed, I was not too surprised by this ruling.
Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events. Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:
The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics. Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues. Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment." In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.
June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack
Tuesday, June 10, 2014
DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board. And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.
As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines. Here are the basics of the compromise advocated by DOJ via its submitted testimony:
After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....
Assessing whether the amendment should be applied retroactively requires balancing several factors. The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders. While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....
Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....
Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.
With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.
Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.
Some recent related posts:
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Intriguing new report on "Compensating Victims of Crime"
The folks at Justice Fellowship have just released an interesting new report titled simply "Compensating Victims of Crime" as part of its advocacy for restorative justice programming. This report's Executive Summary includes these passages:
Restorative Justice recognizes that crime harms people. Though most people affected by crime are never able to fully reclaim what was taken, victim compensation funds are a tool used within our criminal justice system to advance the much needed value of assisting victims and survivors of crime. Unfortunately, very little of the billions of dollars placed within these funds goes directly to victims and survivors of crime. This report is an extensive overview of victim compensation funds and highlights some concerns and provides some suggestions for reform.
Victim compensation funds are funded by criminal fines and taxpayer dollars and offer monetary assistance to victims and survivors of violent crime. Though similar in concept to restitution, they differ in eligibility requirements, funding sources, and distribution. Currently, victim compensation funds only provide monetary assistance to a small number of victims and survivors of violent crime. Of the approximately 7 million victims of violent crime per year, only 200,000 receive assistance from a compensation fund. Even more disturbing is the ratio of money spent on compensation compared to that which is spent on corrections. In 2012, federal, state, and local governments spent approximately $85 billion on corrections. In the same year, victim compensation funds paid out approximately $500 million dollars—less than 1% of what was spent on corrections.
This disparity cannot be blamed on a lack of funds. The Crime Victims Fund — a hybrid system funded jointly by federal and state dollars, but administered at the state level —currently retains a balance of almost $11 billion, while some states have additional balances that approach $10 million. Congress, however, has capped the total annual Crime Victims Fund spending at $745 million dollars despite the large pool of victims who are eligible to receive funds. Further, the average maximum amount that victims and survivors can receive from a victim compensation fund is $26,000.
Because victim compensation funds are administered on the state level, states differ in the eligibility requirements. All states compensate for medical expenses, mental health counseling, lost wages, funeral costs, and travel. Many states compensate for crime scene cleanup, attorney fees, rehabilitation, replacement services, and relocation services. Few states compensate for things like pain and suffering, property loss, stolen cash, transportation, return of an abducted child, guide dog expenses, domestic services, home healthcare, and forensic exams in sexual assaults.
Unfortunately, many victims do not receive any compensation. This often occurs simply due to a lack of knowledge about the compensation fund. However, there are numerous other reasons, including the fact that there are fairly stringent requirements that one must satisfy to receive funds. Half of all states require victims or survivors to report the crime to law enforcement within 72 hours. 12 states require a police report to be filed within 5 to 10 days. A majority of the states require victims and survivors to file a compensation claim within one to two years, and several states restrict compensation to victims who have a prior felony conviction in the last 10 years. While these requirements may not seem stringent at first glance, consider that many crimes are not ever reported for fear of retribution, continued victimization, or the stigma that comes with being a victim. Forty-two percent of victims do not report serious violent crimes to law enforcement officials. As a result, they are denied access to compensation funds....
The system currently in place can be vastly improved. The federal cap on the dispensing of funds should be raised to $1 billion. Awareness of these funds must be increased through additional community infrastructure and advocacy. Overly restrictive requirements must be relaxed so that people have a chance to qualify for compensation once they know it is available. Finally, stringent oversight and transparency of state funds for victims is necessary to ensure that the money is being used properly. Increasing awareness, access, and availability of compensation funds will prioritize victims and survivors in the criminal justice system and advance the values of restorative justice.
The full text of Compensating Victims of Crime is available here.
June 10, 2014 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack
Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity
This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):
Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world. Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say. The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....
Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners. "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....
In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole. Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment. Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....
The ruling caused confusion, however. While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.
In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.
Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole. "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.
The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court. Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling." Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive. Six states have gone the other way.
Such a split cannot stand for long, said Emily Keller of the Law Center. Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief. That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.
Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."
More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong. "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.
As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively. But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania. I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.
New ACLU report assails private prison industry involved in federal immigration detention
As detailed in this press release, this week "the American Civil Liberties Union and the ACLU of Texas released the report Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, [which examines] the secretive 'Criminal Alien Requirement' or 'CAR' prisons for immigrants." Here is more about the report from the ACLU press release:
In a four-year investigation of five CAR prisons in Texas, our researchers found pervasive and disturbing patterns of neglect and abuse of the prisoners–all non-citizens, most of whom have been convicted only of immigration offenses (such as unlawfully reentering the country).
"At the CAR prisons we investigated, the prisoners lived day to day not knowing if their basic human needs would be met, whether they would get medical attention if they were hurt or ill," said Carl Takei, Staff Attorney at the ACLU’s National Prison Project. "The Bureau of Prisons creates perverse incentives for the for-profit prison companies to endanger human health and lives."
In total, the 13 CAR prisons across the country hold more than 25,000 immigrants.... The report details the relationship between each of the three companies that run them–CCA, GEO Group, and MTC–and the federal Bureau of Prisons, including the ways that the Bureau and the companies work together to cover up the prisons’ conditions....
In Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, the ACLU and the ACLU of Texas tell the stories of prisoners who have been torn from their families by the extreme distances (often 1,000 miles or more) between a CAR prison and a prisoner’s hometown and by the high phone rates the private prison companies charge for phone calls.
Among its recommendations to the federal government, the report calls on the Bureau of Prisons to strengthen oversight of CAR prisons, end the use of contractually binding occupancy quotas for CAR prisons, and stop spending taxpayer money to shield basic information about private prisons from public disclosure. It also urges the Departments of Homeland Security and Justice to return immigration enforcement to civil immigration authorities.
The full report is available at this link.
Monday, June 09, 2014
"Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis"
The title of this post is the title of this notable essay by Jonathan Rapping that I just came across on SSRN. Here is the abstract:
The Gideon Court recognized a truism: until we ensure that poor people have access to the same quality of counsel that people with means can pay for, we cannot have equal justice. But fifty years later, the promise of equal justice has not materialized. In so many ways, our criminal justice system is less fair; less equal; less humane. Since Gideon was decided, the U.S. imprisonment rate has nearly quadrupled, and the percentage of people charged with crimes who are poor has roughly doubled. As compared to 1963, poor people today are more likely to be arrested, convicted, and sentenced to lengthier prison terms than their wealthier counterparts.
Given these depressing developments, some have questioned whether the right to counsel has made much of a difference for indigent defendants and whether it is even worth defending as a force to end the injustices of the system. This Essay takes a different view of the problem and argues that a strong public defender system is necessary to achieve systemic reform. This is so both because of the role the public defender plays in interrupting a process that is increasingly designed to convict and punish poor people en masse, and because of the potential of a strong community of public defenders to galvanize the movement needed to push for important policy reform.
"What Is Federal Habeas Worth?"
The title of this post is the title of this interesting new piece on SSRN authored by Samuel Wiseman. Here is the abstract:
Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed, producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change — radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate. This article lays out a needed empirical and theoretical foundation for the debate over habeas’s future. To date, no one has estimated how much federal habeas actually costs (and thus the potential savings from eliminating it), a figure necessary for assessing the feasibility and desirability of any radical reform scheme. This article fills that gap, using available budget data, public records requests, and correspondence with state officials to estimate that figure at roughly $260 million per year.
This sum, a tiny fraction of criminal justice spending and barely a blip in state and federal budgets, places recent reform proposals in a new light: it is possible that these proposals have failed to gain more traction because they would not free up sufficient funds to please either habeas proponents or opponents. The federal habeas system is one of the only mechanisms through which federal courts may reveal state violations of defendants’ constitutional rights, and it retains both instrumental and symbolic value. Further, getting rid of the watered-down version of individual review that remains under AEDPA would likely be difficult to reverse, making a more robust system harder to realize in the future. Any proposals to curtail this system in exchange for state reforms therefore have a high barrier to overcome with habeas proponents. For federal habeas opponents, the current federal system is not particularly costly, either financially or otherwise, since so few petitioners obtain relief. Given the small cost of the current system, and thus the financial savings available, radical form is probably unlikely, regardless of the desirability of any individual proposal. The article therefore proposes more modest reforms to make the current system more functional. One such step is ensuring that federal habeas under AEDPA, despite statutory silence, is not blind to the quality of state postconviction processes.
Sunday, June 08, 2014
"The Failure of Mitigation?"
The title of this post is this notable new paper by Robert J. Smith, Sophie Cull and Zoe Robinson now available via SSRN. Here is the abstract:
A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime.
This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.
Friday, June 06, 2014
More critical analysis of NRC mass incarceration analysis from John Pfaff
As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration. John's first five posts in that series are linked here, and now below I have linked his latest in this important series:
- The Flawed NRC Report: What Incentivizes Prosecutors?
Thursday, June 05, 2014
"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"
The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN. Here is the abstract:
The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause. Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual. It therefore may not be long before the courts, including the Supreme Court, must finally address the issue. When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment. The Constitution should not allow a person to be imprisoned for committing a strict liability offense.
Wednesday, June 04, 2014
Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP
The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here). As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:
Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge. To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.
We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed. But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment. Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands. And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....
We acknowledge that our result may seem harsh. Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence. But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.
At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway. On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.
A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.
While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.
Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:
Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....
Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge. The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence. Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal. In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison. This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.
In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal. That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]
From this result, a pyrrhic victory if there ever was one, I respectfully dissent.
[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken. The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish he had left well enough alone." I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process. If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.
I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.
Constitutional challenge to California's solitary confinement practices to proceed as class action
As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:
A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....
The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....
In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.
In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....
The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....
Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.
Tuesday, June 03, 2014
After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?
The old saying goes, "If at first you don't succeed, try, try again." But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again. The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:
Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.
Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.
His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein. Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed. An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.
Broom's appeals in federal court are on hold while the state court hears the constitutional arguments. Broom has been back on death row since. No new execution date has been set.
In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work. The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments. A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.
Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing.... The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins.
For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky. In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence. But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence. Stay tuned.