Monday, July 28, 2014

Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation

I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is.  Here is how the panel majority opinion (running 18 pages) concludes:

For the foregoing reasons, we hold that North Carolina’s legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender’s prior North Carolina conviction was punishable by more than a year in prison.  Because Valdovinos’s offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence].  We appreciate the fervor and policy arguments of our friend in dissent.  Indeed, we can agree with many of the latter.  What we cannot agree with is that “application of relevant precedent” does not require the result here.  Carachuri and Simmons do just that.  The judgment of the district court is affirmed.

Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):

Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime.  Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis.  I deeply regret the panel’s failure to take advantage of the opportunity to do so here....

Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely “clever”, see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina’s historical (and now superseded) sentencing regime. And Mr. Valdovinos’s sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months.  He’d soon be on his way home to Mexico, if not already arrived.

That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress.  Would that my friends could see that it’s a new century, complete with a host of profound and valuable insights at our avail.  I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to “administer justice,” 28 U.S.C. § 453, we ought not to draw on these insights.

One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much.  Respectfully, I dissent.

July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Are Opponents Of The Death Penalty Contributing To Its Problems?"

The question in the title of this post is the headline of this notable recent NPR story.  Here are excerpts:

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Recent related posts on the California capital ruling by US District Judge Carney:

July 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, July 27, 2014

"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"

The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN.  Here is the abstract:

Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings.  This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach.  The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.

At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases.  Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases.  A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes.  Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.

July 27, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Defender hiccup or major headache for Clemency Project 2014?

The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.

I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.

July 27, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 25, 2014

"After troubled execution in Arizona, Ohio to use same drugs, dosage"

The title of this post is the headline of this new article in my own Columbus Dispatch, which highlights that the Buckeye State's execution plans for later this year could be further complicated by the ugly execution that took place in Arizona earlier this week.  Here are the details:

Despite problems that plagued an Arizona execution, Ohio officials plan to use the same drugs in the same quantity during Ronald Phillips’ execution scheduled for Sept. 18.

Capital punishment in Ohio has been on hold for two months because of an order by U.S. District Judge Gregory L. Frost in a lethal-injection case.  Frost’s order expires on Aug. 15. Barring further legal action, the execution will proceed for Phillips, a Summit County child-killer who already has had two reprieves.

However, the troubled execution of Joseph Wood in Arizona on Wednesday turned up the heat on a death-penalty debate that began on Jan. 16 when Ohio executed Dennis McGuire using a then-untested chemical combination.

Wood, 55, died after gasping and snorting for about 90 minutes during an execution process that lasted nearly two hours.  The process took so long that Wood’s attorneys had time to file an emergency appeal in federal court during the execution — and the Arizona Supreme Court held an impromptu conference to discuss it. A witness said Wood looked like “a fish on shore gulping for air,” according to The Arizona Republic.

Jill Del Greco, spokeswoman for Ohio Attorney General Mike DeWine, said she could not predict what might happen after Frost’s order expires.  But she added, “As of now, an execution is still scheduled for Sept. 18.” Meanwhile, the Ohio Department of Rehabilitation and Correction is “always evaluating our policies to ensure executions in Ohio are carried out in a humane and lawful manner,” spokeswoman JoEllen Smith said. “Because there is pending litigation regarding this matter, I cannot comment further.”

While prison officials concluded that McGuire, 53, did not feel “pain or distress” during his execution, witnesses observed that he repeatedly gasped, choked, clenched his fists and appeared to struggle against his restraints for more than 10 minutes after the administration of midazolam, a sedative, and hydromorphone, a painkiller.  McGuire was executed for the murder of 22-year-old Joy Stewart in 1989.  It was the first time that those drugs were used in an execution in the United States.

Ohio officials said the dosage for the next execution will be 50 milligrams of midazolam, up from 10 milligrams, and 50 milligrams of hydromorphone, up from 40 milligrams. That is the same quantity used in Wood’s execution.  Ohio will have a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”

Phillips, 40, was scheduled to be put to death last Nov. 14, but Gov. John Kasich postponed his execution by seven months to give the inmate the opportunity to make good on his desire to donate a kidney to his ailing mother.  Time ran out before arrangements could be finalized, and Phillips was scheduled to die on July 2. That date was postponed by Frost’s order.

The state switched to the two drugs for intravenous injection for McGuire's execution because pentobarbital, the single drug used before, no longer is available because manufacturers will not sell it for use in executions.

Recent related posts:

July 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Wednesday, July 23, 2014

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Should federal prosecutors be able to read emails sent by prisoners to their lawyers?

The question in the title of this post is prompted by this new front-page New York Times story, headlined "Prosecutors Are Reading Emails From Inmates to Lawyers."  Here is the context:

The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.

But even as Mr. DiFiore sat in a jail cell, sending nearly daily emails to his lawyers on his case and his deteriorating health, federal prosecutors in Brooklyn sought to add another layer of evidence: those very emails. The prosecutors informed Mr. DiFiore last month that they would be reading the emails sent to his lawyers from jail, potentially using his own words against him.

Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided....

Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense.  Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.

July 23, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, July 22, 2014

What do you get when you mix a challenge to a local $30 "booking fee" with a lot of very smart federal judges?

The answer to the seemingly silly question in the title of this post is provided by the 50+ pages of very interesting and dense discussions coming from a number of Seventh Circuit judges in its en banc ruling yesterday in Markadonatos v. Village of Woodridge.  Will Baude at The Volokh Conspiracy provides here a relatively simple account of what transpired on appeal after Jeff Markadonatos challenged the constitutionality of being subject to a $30 administrative fee under a local ordinance following his custodial arrest and booking procedure.  And Judge Sykes' opinion starts with this account of the fascinating en banc hash that the case became:

The ground has shifted under this case since we granted rehearing en banc.

• Three members of the court now propose to affirm by invoking the doctrine of constitutional avoidance, an option not raised by the parties.  See ante, at 7–15 (Posner, J., concurring in the judgment).

• Four members of the court would reverse and remand on the merits, though on a different analysis than originally argued by the plaintiff or adopted by the panel dissent. Compare post, at 45–49 (Hamilton, J., dissenting), with Markadonatos v. Village of Woodridge, 739 F.3d 984, 994–1000 (7th Cir. 2014) (Hamilton, J., dissenting), and Appellant’s Br. at 9–28, 33–40, ECF No. 22 (panel brief).

• For my part, en banc review has reinforced my earlier doubts about the plaintiff’s standing. I would vacate and remand with instructions to dismiss for lack of jurisdiction.

• Judges Easterbrook and Tinder substantially agree with me that the plaintiff lacks standing, although they conclude that a narrow aspect of the case is justiciable.  See ante, at 17 (Easterbrook, J., concurring in the judgment).  But they also disagree with Judge Posner’s use of the constitutional-avoidance doctrine and instead would hold that the justiciable remainder is not viable as a due-process claim, as the plaintiff has argued it, but only as an equal-protection claim, which fails on the merits.  See id. at 18–22.

In short, the en banc court cannot agree on what questions the case raises, whether the plaintiff is the right person to raise them, whether they have been properly preserved, or what doctrinal framework applies.  Our fractured nondecision suggests that this case was a poor vehicle for resolving the constitutionality of a jail booking fee.

July 22, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 21, 2014

Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell

Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend.  Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:

It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.

I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte.  But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules."  (Chaidez, Summerlin, Lambrix, etc.).  I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar.  That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way.  Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule.  In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief.  Hence, the rule here was "new."

Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule).  Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?).  I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final.  Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred.  There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.

I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis.  I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies.  I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks.  But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?

Of course, I am troubled by many aspects of the case, not just the Teague analysis.  That's just the tip of the iceberg for me.  But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong.  My mind is open.  But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right).   At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine. 

Recent related posts:

July 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

July 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Furman and randomness (not just delay) at heart of California capital ruling

As discussed here and here, U.S. District Judge Cormac Carney earlier this week declared all of California's death penalty system unconstitutional in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here).  Because much of the opinion documents how "California’s death penalty system [has become] so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," much criticism of the opinion questions how a very long delay between a death sentence and an execution could alone render a sentence unconstitutional.  As noted before, Kent Scheidegger here at Crime & Consequesnces has stressed that few Justices have taken "seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it."  And now Orin Kerr here at The Volokh Conspiracy explains why he "found the [Jones] opinion unusually weak" given all the "obvious puzzles raised by delay-based Eighth Amendment claims."

Though decades of delay between a death sentence and possible execution is part of the equation of the Judge Carney's ruling in Jones v. Chappell, I see the concept of randonmess to be more fundamental and more fundamentally important to Judge Carney's constitutional conclusion.  Judge Carney cites repeatedly the various opinions in the Supreme Court's 1972 landmark ruling in Furman v. Georgia which found an Eighth Amendment violation based ina state's sentencing process making it essentially random (or "arbitrary") who ultimately gets sentenced to die among a large pool of eligible capital defendants.  I read Judge Carney's opinion as extending Furman by concluding that the Eighth Amendment is also violated if and when a state's appeals process makes it essentially random (or "arbitrary") who ultimately gets executed among among a large pool of condemned defendants sentenced to die

Because Furman remains good law (and obviously has nothing to do with execution delay), I think there is a little more "juice" to the ruling in Jones v. Chappell than suggested by those whose criticisms are focused only on execution delay aspects of the ruling.  Indeed, in order to keep the focus on Furman and randomness, consider a variation on a hypothetical statute present to students when discussing Furman.  Consider, dear readers, if you think a state would be constitutionally allowed to pass a capital law along these lines:

Because of the huge costs associated with adequate appellate review of death sentences, state appeals courts should randomly select (via a fair lottery process) only 1 out of every 50 death sentences to be subject to full and fair appellate review each year.  All death sentences shall be indefinitely stayed (and no execution date imposed) unless and until a death sentence has been is randomly selected for, and properly subject to, full and fair appellate review.

Of course, California has not formally passed such a law.  But Judge Carney's ruling (rightly) finds that California functionally operates its capital punishment system this way AND then (questionably) concludes such a capital punishment system violates the Eighth Amendment based on Furman

Recent related posts:

July 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Lots of notable discussion of yesterday's notable decision striking down California's death penalty

As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional.  Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.

The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death."  I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:

July 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 16, 2014

"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"

The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution.  These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate.  Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression.  Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death.  Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement.  Other narratives focus on ideas of rational choice and personal autonomy.  This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.

The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison.  The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars.  My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions. 

July 16, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, July 15, 2014

Intriguing sparring over victims' rights in Colorado massacre capital case

This local article from Colorado, headlined "James Holmes case: Death penalty foe Bob Autobee's letter to victims stirs controversy," reports on a notable fight which has broken out concerning victims and victims' rights in high-profile capital cases.  Here are excerpts:

Does the father of a victim in one death-penalty case have the right to contact family members in another capital case?  And, under Colorado law, do prosecutors have any obligation to facilitate that conversation — even if the discussion isn't going to help their cause? The questions are key to a new controversy in the case of accused Aurora theater shooter James Holmes.

The current subject of raging debate in local criminal justice circles is DIVO — not the pioneering weird-rock band, but an acronym for Defense Initiated Victim Outreach, a program that's assuming a growing role in high-stakes cases.   As Melanie Asmar recently reported, the defense team representing Holmes has accused prosecutors of impeding their attempts to contact victims of the 2012 Aurora theater shootings, while prosecutors have claimed that the defense is improperly using the DIVO process to try to sway victims to oppose the death penalty.

But what hasn't been publicly disclosed — thanks largely to Judge Carlos Samour's insistence on redacting the blank out of public pleadings in the Holmes case — is that one of the people seeking to reach out to victims is Bob Autobee, whose own views on the death penalty underwent a dramatic reversal as the effort to execute his son's killer dragged through the courts for almost twelve years.

In 2002, Autobee's son Eric, a 23-year-old correctional officer, was fatally attacked in the kitchen of the Limon prison by inmate Edward Montour Jr., who was already serving a life sentence for killing his eleven-week-old daughter.  Montour pleaded guilty to murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury.  Bob Autobee, initially a strong supporter of the death penalty, gradually became disheartened by the numerous delays in the case and began to push for a life sentence instead.

After meeting with Montour in a restorative justice session, Autobee began picketing the Douglas County courthouse to protest Eighteenth Judicial District Attorney George Brauchler's insistence on pursuing Montour's execution; Brauchler's office even filed a motion in the case seeking to prevent Autobee from addressing the jury at trial.  But the case never got that far.  Last March, just as the trial was starting, startling new evidence suggested that Montour may have been wrongly convicted in the infant death that put him in prison in the first place.  Shortly thereafter, prosecutors agreed to let Montour plead guilty to first-degree murder and receive a life sentence.

A few weeks ago, Montour attorney David Lane, an outspoken opponent of the death penalty, forwarded a letter from Autobee to one of the victims in the Holmes case, urging the victim to distribute it to others.  In the letter, Autobee invites victims to meet with him so he can "offer my insights into this emotional roller coaster in hopes that it may help you to both understand the process you are going through with the prosecution and trial of James Holmes, and to share with you how I finally came to a place of peace and tranquility after fighting the pain and torment I was undergoing for ten years." See the letter below.

Lane says the first victim he contacted evidently decided not to distribute the letter.  A second contact sent the letter to a victim's advocate in the DA's office, "who never distributed it to anyone," Lane says. And that, the attorney suggests, is part of a deliberate effort by prosecutors to squelch DIVO efforts in the Holmes case.

"There's a statute in Colorado that says victims must be informed of their right to participate in restorative justice processes," Lane notes.  "The DAs never tell victims that they have that right or explain what the process is. They're doing everything in their power not to expose any of the [theater shooting] victims to DIVO — because they saw what happened in the Montour case. When Bob Autobee was exposed to DIVO, he did a complete turnaround on the death penalty."

July 15, 2014 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Monday, July 14, 2014

"Moneyball Sentencing"

The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct.  Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education).  The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.

Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence.  This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.  This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile.  It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.

July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack