Tuesday, November 05, 2013
SCOTUS unanimously reverses Sixth Circuit on Sixth Amendment habeas case in Burt v. TitlowThe Supreme Court wasted no time wasting a Sixth Circuit ruling that ruling in favor of a state habeas petitioner, issuing today a reversal in Burt v. Titlow, No. 12-414 (S. Ct. Nov. 5, 2013) (available here). Here is how the opinion for the Court by Justice Alito gets started:
When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit’s decision must be reversed.
Both Justice Ginsburg and Justice Sotomayor have written short opinions in Burt v. Titlow in order to articulate their views of what the Court's opinion does not mean.
Based on a very quick review, it seems this ruling should be viewed more as a bit of habeas review error-correction rather than a significant new precedent about the Sixth Amendment's reach or application. But all habeas practitioners ought to give this a very close read to see if there might be more "there there" than immediately meets the eye.
New Urban Institute report recommends policies to reduce federal prison growthAs detailed via this webpage, The Urban Institute has today released this notable new report titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System." Here is how the webpage summarizes the report's content and coverage:
Here is the conclusion of this report's executive summary, which provides some details about its specific recommended reforms:
The federal prison population has risen dramatically over the past few decades, as more people are sentenced to prison and for longer terms. The result? Dangerously overcrowded facilities and an increasing expense to taxpayers. In a new Urban Institute report, the authors project the population and cost savings impact of a variety of strategies designed to reduce the inmate population without compromising public safety. They find that the most effective approach is a combination of strategies, including early release for current prisoners and reducing the length of stay for future offenders, particularly those convicted of drug trafficking.
[T]o yield a meaningful impact on population and costs, a mix of reforms to sentencing, prosecution, and early release policies are required. The most effective way to reduce overcrowding is to lower mandatory minimums for drugs, which, alone, would reduce overcrowding to the lowest it has been in decades. Add two more options — retroactively applying the Fair Sentencing Act to crack offenders already in BOP custody and providing a broader earned time credit for program participation — and the BOP could save $3 billion. Updating the formula for good time credits and providing early release for certain nonviolent older inmates would lead to an additional 5,000 immediate releases, while lowering the truth-in-sentencing requirement for new BOP admissions who exhibit exemplary behavior while in custody would further reduce the future prison population. Even with a mix of reforms, federal prisons may continue to be overcrowded. But a smart combination of policies will save taxpayers billions, make prisons less dangerous, and improve the quality and reach of programs designed to keep inmates from offending again.
When and how will SCOTUS take up Miller retroactivity issues?The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court's decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court's Miller ruling should not get any retroactive benefit from that decision. Here is an excerpt:
There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.
Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.
Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White's that were final before June 2012.
The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can't believe that it's fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.
“But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.
Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court's ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.
Monday, November 04, 2013
Sentencing judge explains his view on how nationwide reforms should impact federal marijuana sentencing
I noted in prior recent posts here and here, U.S. District Judge James Bredar last month conducted a hearing to explore marijuana legal reforms and developments at the state and federal level now called for imposing below-guideline sentences for federal marijuana offenses. This past Friday, Judge Bredar handed down a 12-page opinion in US v. Dayi, No. JKB-13-0013 (D. Md. Nov. 1, 2013) (available here), explaining his views and thinking on this front. Here is an excerpt from the final sections of the fascinating (and perhaps very important?) Dayi opinion:
The evolving landscape of state law and federal enforcement policy regarding marijuana is particularly relevant to two of these [statutory sentencing] factors, namely (1) the need for any sentence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” § 3553(a)(2)(A), and (2) the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6).....
The Court’s role is not to question, criticize, or laud the Justice Department’s new enforcement priorities or the recent enactments of state voters and legislators. These policy choices reflect an on-going effort to address a complex, difficult, and highly controversial issue. Rather, the Court’s role is simply to take note of these developments and consider them as part ofits assessment of the seriousness of these offenses. Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” § 3553(a)(2)(A)....
The Court also finds that Guidelines sentences in these cases would fail to address the “need to avoid unwarranted sentence disparities among defendant s with similar records who have been found guilty of similar conduct.” § 3553(a)(6). The Court construes this factor broadly, interpreting it as a command to ensure that sentences comport with the notion of equal justice under the law. The Justice Department has decided it will not prosecute certain marijuana traffickers, including large-scale commercial distributors who, in compliance with state laws and regulations, establish retail outlets that cater to recreational marijuana users in Colorado and Washington. Although the illegal enterprise in these cases is not identical to these commercial distributors — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations in Colorado and Washington that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities. As a result, the Court finds this factor too justifies a downward variance from the sentence the Guidelines would otherwise recommend....
Of course, these two factors are not the only ones the Court must consider under § 3553(a). Others, particularly “the nature and circumstances of the offense,” § 3553(a)(1), and“the need for the sentence imposed to afford adequate deterrence to criminal conduct” § 3553(2)(B), militate more strongly in favor of a Guidelines sentence. Indeed, the conspiracy at issue in these cases was a large, elaborate, and profitable illegal operation involving well in excess of 1,000 kilograms of marijuana. The Court therefore believes that a two-level variance from the Guidelines, which would reduce each defendant’s sentence by roughly 20 to 25%, is appropriate. Such a variance reflects national trends in the enforcement of marijuana-related offenses, while recognizing the undeniable illegality of defendants’ conduct. As it determines the sentence of each defendant in these cases, the Court will adopt this analysis, and accordingly it will grant each defendant the benefit of a two-level downward variance.
Recent related posts:
- Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?
- Baltimore Sun praises federal sentencing judge for his part in a "national conversation about pot"
Cross-posted at Marijuana Law, Policy and Reform.
Sunday, November 03, 2013
Should we worry early parole might cut 750 years off sex offender's prison term?The question in the title of this post is my tongue-in-check response to this local West Virginia sentencing story sent my way by a helpful reader. The piece is headlined "County man sentenced to 250 -- 1,000 years," and here are the details:
A Marion County man was sentenced to 250 -- 1,000 years in prison Friday for 10 counts of sexual abuse and 10 counts of sexual assault, all involving a minor. Matthew Monroe Cottingham, 28, of Fairmont, was sentenced by Marion Circuit Judge David R. Janes.
Cottingham was sentenced to 25 to 100 years for each of 10 counts of sexual assault on a minor and 10 to 25 years for each of 10 counts of sexual assault by a parent, guardian or custodian. He will serve the sentences for sexual assault consecutively and the sentences for sexual abuse concurrently, said Marion County Prosecuting Attorney Patrick Wilson....
“The sentences of 25-100 years are indeterminate,” Wilson said. “He would have to do 25 years on each count before he’d be eligible for parole.”
Cottingham had been first arrested in late July 2012 by Fairmont police. According to criminal complaints, he forcibly had sexual relations with a 13-year-old girl. The girl allegedly told her mother the next day, and statements by the victim and physical evidence observed at Fairmont General Hospital were reportedly consistent with the allegations....
Child Protective Services continued to investigate the incident since the initial arrest. A second child, a 9-year-old girl, alleged that Cottingham had perpetrated “several sexual assaults ... dating back years prior to his arrest to CPS officials.”
Friday, November 01, 2013
Second Circuit panel halts NYC stop-and-frisk remedies and removes district judge from caseAs reported via this New York Law Journal article, headlined "Circuit Rebuffs Scheindlin on Stop/Frisk," yesterday brought an eventful order from a panel of Second Circuit judges in a high-profile lawsuit about police practices in New York City. Though not involving a sentencing issue, I suspect reader of this blog might have thoughts they wish to share on this notable criminal justice development. Here are the basics from the start of the NYLJ report:
Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.
The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York, 13-3088, and it stayed pending appeal Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.
Two days after oral argument on whether to stay Scheindlin's appointment of monitor Peter Zimroth, a partner at Arnold & Porter, to help remedy police violations of the Fourth and Fourteenth Amendments, the Second Circuit said Scheindlin presented the appearance of partiality both in how she came to preside over the Floyd case in the first place and in interviews she gave to reporters.
Judges Jose Cabranes, Barrington Parker and John Walker, in a three-page order, stayed Scheindlin's Aug. 12 liability opinion in Floyd, where she found a top-down police department practice of making hundreds of thousands of stops without reasonable suspicion of criminal activity, and that blacks and Hispanics were targets of those stops.
The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx.
Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon. In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year.
Thursday, October 31, 2013
"Can the system curb prosecutorial abuses?"The title of this post is the headline of this article in The Arizona Republic capping its series of article on the problems of prosecutorial misconduct. Here is how this piece starts:
For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win. The question remains: What can be done about it? Options already are in place.
When a prosecutor steps over the line, it’s up to the defense attorney to call it to the court’s attention, and it’s up to the judge to decide whether an offense has been committed and whether it affects the defendant’s right to a fair trial. Yet, neither likes to do so.
Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.
Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.
So overly aggressive prosecutors continue to have their way in the courtroom – as long as they win cases, experts say. “It comes from this ‘end-justifies-the-means mentality,’” said Jon Sands, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”
Here are links to the other article in the series:
- "Prosecutorial misconduct alleged in half of capital cases"
- "Prosecutorsunder scrutiny are seldom disciplined"
- "Objections raised to Juan Martinez's conduct in Jodi Arias trial"
Wednesday, October 30, 2013
Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
Thanks to How Appealing, I see that the Supreme Court of Pennsylvania today finally handed down its long awaited ruling as to whether the hundreds of state teens given mandatory LWOP before the Supreme Court's Miller ruling would get any retroactive benefit from that decision. The 4-3 split decision consists of a this majority opinion, this concurring opinion, and this dissenting opinion.
Here is how the majority opinion concludes:
All Justices of this Court and the United States Supreme Court share the sentiment that “[d]etermining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy.” Miller, ___ U.S. at ___, 132 S. Ct. at 2477 (Roberts, C.J., dissenting, joined by Scalia, Thomas, and Alito, JJ.). Our role in establishing social policy in the arena is a limited one, however. Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement. See generally Geter, 115 So. 3d at 377 (“Clearly and unequivocally, the Supreme Court distinguished between the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in Roper and Graham, and the procedural determination in Miller that merely requires consideration of mitigating factors of youth in the sentencing process.” (quoting Miller, ___ U.S. at ___, 132 S. Ct. at 2471)). See generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Teague has made new rulings very rarely applicable retroactively on habeas review[.]”).
Here is a key part of start of the concurring opinion by the Chief Justice: "I write separately to express my own view of what, if anything, might be done to mitigate the seeming inequity that is a result of the High Court’s ruling in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). The 'seeming inequity' here arises from the fact that the prospect of an individualized, discretionary judicial determination of whether a juvenile murderer should ever be afforded parole eligibility depends solely upon the happenstance of the moment that the defendant’s conviction became final."
And here is the first sentence of the dissent: "While I find merit in much of the Majority’s analysis, I ultimately conclude that Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), should apply retroactively to juveniles sentenced to life without parole on timely collateral as well as direct review because I find Miller to be an effectively substantive rule."UPDATE: How Appealing provides links via this posting to some local media coverage of this Cunningham ruling, including this Allentown Morning Call article which provides some sense of the impact and reactions to the ruling:
The decision upholds the sentence of Ian Cunningham, a man serving life in prison for a murder he committed when he was 17. It also affects as many as 450 Pennsylvania inmates including six from Lehigh County.
Ultimately, the question will have to be decided by the federal courts, and may end up back before the U.S. Supreme Court, said Kimberly Makoul, an Allentown attorney who represents Joseph G. Romeri, who is 35 years into a life sentence for bludgeoning to death an 80-year-old city woman in 1978, when he was 16. "There is still hope," Makoul said. "It's not over yet and all hope certainly isn't lost."
Marsha Levick, an attorney with the Juvenile Law Center in Philadelphia, said the Pennsylvania high court's decision misses the ethical importance of the federal decision. "When the U.S. Supreme Court puts down a marker … it is morally unconscionable to leave any juvenile offender on the other side of that marker," she said....
The Pennsylvania court's decision was welcomed by families whose loved ones were killed by juveniles. Since the federal decision, they have been bracing for new sentencing hearings that they feared would reopen old wounds by forcing them to relive painful memories. "It's really good to hear. Really," said Darryl Romig, whose 12-year-old daughter, Danni Reese, was raped and strangled in 2003 in Allentown by a 17-year-old killer who received an automatic life sentence.
Brian A. Bahr, now 27 and jailed at the State Correctional Institution-Mahanoy, is among six once-young killers in Lehigh County whose appeals were put on hold pending Cunningham's case. "I'm just glad that he doesn't have the chance to be resentenced," Romig said in a telephone interview. "He did what he did and he deserved what he got."
Tuesday, October 29, 2013
Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?The question in the title of this post is one that I have been thinking about for quite some time, but it has now taking on some real-world salience in the wake of a couple hearings and sentencing decisions by a federal district judge in Baltimore. Two recent reports from the Baltimore Sun, headlined "Federal judge weighs shift on marijuana sentences," and U.S. judge says government view on marijuana raises 'equal justice' issue" (available here and here, respectively), suggests that at least one federal district judge believes the answer to the question in the title of this post is yes. Here are details drawn from both press reports:
Cross-posted at Marijuana Law, Policy and Reform.
A federal judge said Friday he would consider lighter-than-normal sentences for members of a major suburban marijuana smuggling organization — the latest fallout of the drug's legalization in several U.S. states.
U.S. District Judge James K. Bredar noted that federal authorities announced this summer they would not pursue criminal cases against dispensaries and others legally handling marijuana in states where the drug has been legalized.
Bredar, who called the hearing to discuss the issue, said it might be more appropriate to compare the defendants in the Maryland marijuana case to smugglers of improperly taxed cigarettes rather than treat them as hardened drug traffickers. "It's a serious thing," Bredar said of the group's operation, "but it's not the same as dealing heroin."...
Friday's hearing involved defendants convicted of running a smuggling operation that imported large quantities of marijuana to Howard and Anne Arundel counties from California and New Jersey and laundering the proceeds through an eBay business located in a Jessup warehouse. Twenty-two of the 23 people charged in the case have been convicted; charges against one were dismissed.
Earlier this month, Bredar canceled all of the scheduled sentencings in the case and announced his plan to hold a hearing on changes in Justice Department policy that allow marijuana handlers such as dispensaries and cultivation centers to operate openly in states where marijuana is legal....
At issue in the Maryland case, Bredar said, is whether that shift means the government has decided the drug is less serious now than when federal sentencing guidelines were formulated. "Has the federal government changed its enforcement policy?" Bredar asked.
Assistant U.S. Attorney Andrea L. Smith said the topic was an appropriate one to discuss, but argued that marijuana remained a serious drug and noted that the case involved guns and violence. She suggested it might be more appropriate to compare marijuana dealing to trafficking in illegally obtained prescription pain pills rather than to cigarette smuggling....
And on a sliding scale of regulated substances, Bredar said, he thought marijuana had moved away from hard drugs and toward tobacco.
Sentences in federal cases are based on guidelines that take into account drug quantities and other circumstances in advising judges on the appropriate prison time. Those rules already recognize that dealing heroin is much more serious than dealing marijuana.
For example, all else being equal, a defendant convicted of dealing between one and three kilograms of heroin would face between nine and 11 years in prison, as would someone who sold between 1,000 and 3,000 kilograms of marijuana. At the same time, a cigarette trafficker would have to evade $100 million in taxes to face that length of prison sentence — a vastly greater weight in tobacco.
The guidelines are advisory and judges can take other factors into account when deciding a sentence. Bredar said he would take particular note of two of those factors when sentencing the defendants: He wants to make sure that defendants around the country are being treated equally and that the sentences reflect the seriousness of the offense....
A federal judge in Maryland handed down lighter prison sentences Monday to defendants in a huge marijuana distribution case, saying that such offenses are "not regarded with the same seriousness" as they were just a few decades ago.
U.S. District Judge James K. Bredar said the federal government's response to marijuana legalization in some states — notably the decision not to pursue criminal cases against dispensaries and others handling the drug in accordance with those states' laws — raises concerns of "equal justice."
In handing down a nearly five-year sentence, Bredar said he felt Scott Russell Segal had committed a significant crime for his role moving hundreds of kilograms of marijuana and laundering the proceeds.
But the judge used his discretion to ignore federal guidelines, which equate marijuana with harder drugs like heroin and called for Segal to receive eight to 11 years in prison. A second defendant also got a shorter sentence than called for in the guidelines. "It's indisputable that the offense is not regarded with the same seriousness it was 20 or 30 years ago when the sentencing guidelines … which are still in use, were promulgated," Bredar said.
October 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Detailing new state reform efforts to ensure kids get treated as kids by criminal justice systemToday's New York Times has this big story about modern juvenile justice reforms under the headline "A Bid to Keep Youths Out of Adult Prisons." The piece is mostly focused on a recent reform in Colorado, but here is an excerpt discussing the national trends:
In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.
Sarah Brown, a director of the criminal justice program at the National Conference of State Legislatures, said the shift stems from a decline in juvenile crime, concerns about the costs of adult prisons and a growing understanding of adolescent brain development showing that the young have a greater potential for rehabilitation.
The Supreme Court has increasingly taken neurological research into account on juvenile justice issues — most recently in a 2012 case, Miller v. Alabama, which barred mandatory life sentences without the possibility of parole for those who committed their crimes before they turned 18. Justice Elena Kagan’s majority opinion in the case cited adolescents’ “diminished culpability and heightened capacity for change.”
Eleven states, including Pennsylvania, Texas and Virginia, have passed laws that keep most young offenders out of adult jails and prisons. Eight states, including California, Missouri and Washington, passed laws that alter mandatory minimum sentencing for young offenders charged as adults. Four — Connecticut, Illinois, Massachusetts and Mississippi — have broadened the powers of their juvenile courts, enabling them to take cases of juveniles who would have automatically been tried as adults. And 12 states, including Arizona, Nevada, Ohio and Utah, have adjusted the laws governing the transfer of young offenders into the adult system in ways that make it more likely that they will be tried as juveniles.
Many of these bills have passed with bipartisan support in states both Republican and Democratic and with the testimony of the young who are affected and their families, said Liz Ryan, the president of Campaign for Youth Justice, which recently issued a report on the shifts.
October 29, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Monday, October 28, 2013
"Is Guilt Dispositive? Federal Habeas after Martinez"The title of this post is the title of this notable new article about federal habeas corpus law and practice available via SSRN and authored by Justin Marceau. Here is the abstract:
Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.
Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.
NY Times editorial (poorly) urges better assessments of "Why Prisons Are Shrinking"Today's New York Times has this new editorial headlined "Why Prisons Are Shrinking" making these important points:
The mandatory sentencing movement that swept the United States beginning in the 1970s drove the state prison population up from less than 200,000 to about 1.4 million today and made corrections the second-fastest-growing state expense after Medicaid. But bipartisan sentencing reforms in a growing number of states are starting to reverse that trend — causing the prison population to decline by about 3.8 percent since 2009.
Underlying the state reforms is a relatively new and more sophisticated way of using data about the offender — including criminal history, drug abuse and instances of antisocial behavior — to assess the likelihood of that individual’s committing a new crime. And by examining arrest, sentencing and probation data, the states can revise policies that might be driving people back into prison unnecessarily....
Despite the merits of a risk-assessment approach, a report issued earlier this year by the Council of State Governments Justice Center said that many states are still flying blind, because they don’t have the resources to gather data. Moreover, the study noted, handling high-risk and low-risk offenders in the same way is a big mistake, because “low risk individuals have an increased likelihood of recidivism when they are oversupervised or receive treatment or services in the same programs as medium- and high-risk individuals.”
There are proven ways to move away from discredited, ruinously expensive corrections policies. More states need to adopt these approaches.
I am fully supportive of the ideas and themes in this editorial, but a lot more could and should be said at this dynamic moment of sentencing and corrections reform. For example, in the wake of the lastest crime data indicating a spike up in national violent and property crimes (discussed here), this editorial should be stressing the need and importance of a careful state-by-state examination of where crime is going up and whether new (and still emerging) data on changes imprisonment rates and crimes rates provide critical new lessons concerning what we can now conclude about the connections between crime and punishment.
In addition, I think this editorial (and other advocacy concerning these critical issues) ought to be urging sustained examination and analysis of a handful of big jurisdictions in which stories of crime and punishment have been especially dynamic over the last few years. Specifically, I strongly believe that the big states of California, Illinois, New York and Texas, all of which have diverse urban and rural regions and all of which have changes its sentencing laws in diverse ways in recent years, should be a special focal point for sorting through and fairly assessing "proven ways to move away from discredited, ruinously expensive corrections policies."
Last but not least, federal sentencing realities and reform discussions — as well as the interesting "new politics" of criminal justce reform — should be brought into these discussions ASAP. The federal prison population continues to grow despite the reforms ushered in by the Fair Sentencing Act, and it is now unclear whether or when any additional proposed federal sentencing reforms will get through Congress and if any of these reforms will effectively incorporate "proven ways to move away from discredited, ruinously expensive corrections policies." More broadly, I think this editorial (and other advocacy concerning these critical issues) should be urging Congress — and especially those eager to support state rights and state-level solutions — to help provide states with the "the resources to gather data" and build on successful reform efforts. (For example, I have long believe the feds ought to be conducting a kind of "race to the top" federal funding competition to motivate the better development and analysis of state-level crime and punishment data.)
Just a few of many recent related posts:
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
- "Conservatives latch onto prison reform"
- Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
- Guess which state has the highest rate of incarceration of black men in the entire US?
- "Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
October 28, 2013 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, October 27, 2013
Federal sentencing in Kansas to focus on "market value of deer" illegally killedAs reported in this unavoidably amusing article, headlined "Value of deer key in Kansas hunting camp sentencing," a federal district judge is going to be required to do a market analysis of illegally hunted deer in order to properly calculate the federal guideline range of a couple of hunting scoundrels. Here are the details:
For years, hunters trekked to Camp Lone Star near Coldwater where prosecutors say they paid thousands of dollars to illegally kill deer in Kansas. On Monday, what is believed to be one of the largest criminal investigations involving the illegal taking of deer draws to a close with the re-sentencing of two Texas brothers who ran the operation from 2005 to 2008.
James Bobby Butler Jr., the owner and operator of the hunting camp, and his brother, Marlin Jackson Butler, who worked as a guide, admitted in 2011 to violating the Lacey Act, a federal law that prohibits the interstate transport of any wildlife taken in violation of state regulations. The brothers, both from Martinsville, Texas, pleaded guilty to felony charges of conspiracy to violate the Lacey Act and violation of the Lacey Act....
The 10th Circuit Court of Appeals, in its decision last year, said the district court made a mistake in 2011 in calculating sentences based on the full price of a guided hunt, rather than the actual retail value of the animals.
U.S. District Judge Monti Belot is expected to hear testimony at Monday’s hearing about the market value of deer as well as the conduct of the Butler brothers in other uncharged poaching incidents to come up with new sentences. He must also rule on the appropriateness of a hunting and guiding ban for James Butler.
John Brooks, the agent from the U.S. Fish and Wildlife Service who led the investigation, is expected to take the stand for the government. The defense plans to call several people who hunted at the camp. Both sides are also bringing in expert witnesses to testify as to the market value of antlers and other deer parts....
James Butler was initially sentenced by the late U.S. District Judge Wesley Brown to 41 months in prison and ordered to pay a $25,000 fine and $25,000 in restitution. Marlin Butler was initially sentenced to 27 months in prison and ordered to pay a $10,000 fine and $10,000 in restitution. Those initial sentences were thrown out by the appeals court when it sent the case back for re-sentencing.
Thursday, October 24, 2013
Michigan Senate passes (prospective-only) Miller fix proposalAs reported in this local article, headlined "Michigan juvenile lifers: Senate moves to fix unconstitutional law, not offer resentencing," the Michigan legislature is finally making some progress on reforming unconstitutional aspects of its juvenile sentencing scheme. Here are the details:
The Michigan Senate on Thursday unanimously approved legislation that would allow some minors convicted of murder to avoid life in prison -- unless they are already behind bars and have exhausted appeal.
Senate Bills 318 and 319, now headed to the House for consideration, would update Michigan laws that currently allow mandatory life sentences without the possibility of parole for offenders who were under 18 at the time of their crime....
Under the Senate proposal, prosecutors could still seek life sentences without the possibility of parole for minors. But judges, after considering aggravating and mitigating circumstances, would be given new discretion to impose a prison term of between 25 and 60 years. With good behavior, an individual convicted at 15 could have the chance to request a parole hearing and make their case for release when they reached 40.
The bills would not apply retroactively, meaning that "juvenile lifers" already behind bars and out of appeals would not have the opportunity for parole. Michigan is home to more than 360 juvenile lifers, the second-highest total in the nation.
State Sen. Bert Johnson, D-Detroit, proposed an amendment that would have added retroactivity to the legislation, but sponsoring Sen. Rick Jones, R-Grand Ledge, argued against it, and the amendment was shot down. "The bill brings us into compliance with the Supreme court ruling," said Jones. "It does not go into retroactivity because they didn't address that."
Advocates say that juvenile lifers deserve the same opportunities for release as future convicts, but victim families have argued that opening old cases would also open old wounds.
The Supreme Court did not address the retroactivity question, and state and federal courts have offered different answers. U.S. District Court Judge John Corbet O'Meara has said Michigan juvenile lifers deserve a "fair and meaningful possibility of parole," but he has not yet determined what that possibility should look like.
State Rep. Joe Haveman, R-Holland, has introduced House measures that include retroactivity for juvenile lifers. But those bills, the subjects of an emotional hearing in August and opposition from Attorney General Bill Schuette, have not advanced out of committee.
October 24, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
"How Much Does a Public Defender Need to Know About a Client?"The title of this post is the headline of this notable new commentary in The Atlantic by Andrew Cohen, which was recommended to me by a helpful reader. Here is how it starts:
Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.
In State v. Terrence Miller, four justices of the state supreme court — over a lone dissent — affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.
Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.
To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.
Tuesday, October 22, 2013
Can a state continue with execution plans for murderers still on death row after repeal of capital punishment?
The question in the title of this post is being considered today by the Connecticut Supreme Court, as explained in this AP article:
The Connecticut Supreme Court [today] plans to take up the appeal of Daniel Webb, who is currently awaiting execution for the 1989 kidnapping and murder of Diane Gellenbeck, a Connecticut bank executive. Webb wants his death sentence overturned based on the 2012 law that abolished the death penalty in Connecticut, except for those who had already been sentenced to die.
His lawyers argue that the law violates Webb's constitutional rights to equal protection by treating him differently than others charged with similar crimes. They say it also shows the death penalty is inconsistent with current standards of decency in Connecticut and no longer serves any valid purpose.
Given that many folks (including plenty of liberal-leaning ones) seem to believe that it is not constitutionally problematic to have federal crack defendants still subject to excessively long mandatory minimum prison sentences even after Congress reduced these sentences, I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty. It will be interesting to see if a majority of the Connecticut Supreme Court shares such a perspective (and whether, if it does, federal courts will also reach the same conclusion during inevitable additional appeals).
Monday, October 21, 2013
Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:
Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.
In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.
Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.
Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.
Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?
It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?
The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.
In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.
Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....
On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.
October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
SCOTUS grants cert on federal restitution and state Atkins application casesI was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog. But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored. Here is the early report on these latest grants via SCOTUSblog:
The Supreme Court moved on Monday to settle a long-lingering issue: the legal standard for judging whether a person is too retarded mentally to be executed for a murder. That is the issue in Hall v. Florida (docket 12-10882). The Court also agreed to hear a second case, on the scope of restitution as a penalty for bank loan fraud. That is the issue in Robers v. U.S. (12-9012).....
The new death penalty case from Florida raised this issue: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.” In that 2002 decision, the Supreme Court had ruled that it is unconstitutional under the Eighth Amendment to execute individuals who are found to be mentally retarded. The Court, however, left it to the states to decide who is mentally retarded and thus cannot be given the death penalty.
In the new case, attorneys for Freddie Lee Hall contended that Florida courts have adopted a “bright line” rule that a person is not mentally retarded unless their IQ falls below 70. The state Supreme Court found that Hall had an IQ of 71. In an earlier stage of Hall’s case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.
The Hall case is certain to get lots of attention, and perhaps justifiably so. That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court). And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states.
Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute. Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.
As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention. In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges. Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.
Sunday, October 20, 2013
"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.
The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.
The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
Saturday, October 19, 2013
Talk in Georgia about modifying its (too) tough approach to Atkins death penalty issueThis new AP article, headlined "Ga. to review tough death penalty provision," reports about talk of possible reform to Georgia's application of the constitutionally mandated death penalty exception for the mentally retarded. Here are excerpts:
The state that was the first to pass a law prohibiting the execution of mentally disabled death row inmates is revisiting a requirement for defendants to prove the disability beyond a reasonable doubt — the strictest burden of proof in the nation.
A state House committee is holding an out-of-session meeting Thursday to seek input from the public. Other states that impose the death penalty have a lower threshold for proving mental disability, and some don't set standards at all....
Georgia's law is the strictest in the U.S. even though the state was also the first, in 1988, to pass a law prohibiting the execution of mentally disabled death row inmates. The U.S. Supreme Court followed suit in 2002, ruling that the execution of mentally disabled offenders is unconstitutional....
Thursday's meeting comes against the backdrop of the case of Warren Lee Hill, who was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike, who was bludgeoned with a nail-studded board as he slept. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times. Hil
l's lawyers have long maintained he is mentally disabled and therefore shouldn't be executed. The state has consistently argued that his lawyers have failed to prove his mental disability beyond a reasonable doubt. Hill has come within hours of execution on several occasions, most recently in July. Each time, a court has stepped in at the last minute and granted a delay based on challenges raised by his lawyers. Only one of those challenges was related to his mental abilities, and it was later dismissed.
A coalition of groups that advocate for people with developmental disabilities pushed for the upcoming legislative committee meeting and has been working to get Georgia's standard of proof changed to a preponderance of the evidence rather than proof beyond a reasonable doubt. Hill's case has drawn national attention and has shone a spotlight on Georgia's tough standard, they say.
The process has taken an enormous amount of education, said Kathy Keeley, executive director of All About Developmental Disabilities. Rather than opposition to or support for the measure she's pushing, she's mostly encountered a lack of awareness about what the state's law says, she said. The groups are hoping to not only express their views at the meeting, but also to hear from others to get a broader perspective, Keeley said. The changes should be relatively simple and very narrow in scope, targeting only the burden of proof for death penalty defendants, she said.
Ashley Wright, district attorney for the Augusta district and president of the state District Attorneys' Association, said prosecutors question the logic of changing a law that they don't see as problematic and that has repeatedly been upheld by state and federal courts. "The district attorneys don't believe that you change a law for no reason and, in this case, the law appears to be working," she said. "Where has a jury done a disservice? Why are we putting all our eggs in the defendant's basket and forgetting that there's a victim?"
Prosecutors agree that the mentally disabled shouldn't be executed, and defendants are frequently spared the death penalty when there is proof of their mental disability supported by appropriate documentation from credible and reliable experts, she said.
But Hill's lawyer, Brian Kammer, argues that psychiatric diagnoses are complex, and "experts who have to make diagnoses do not do so beyond a reasonable doubt, they do it to a reasonable scientific certainty." Furthermore, he said, disagreements between experts make the beyond-a-reasonable-doubt standard nearly impossible to meet.... In Hill's case, a state court judge concluded the defendant was probably mentally disabled. In any other state, that would have spared him the death penalty, Kammer said.