Monday, June 01, 2015
Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
The depressing question in the title of this post is prompted by this depressing new USA Today article headlined "Obama administration clemency push gets slow start." I have long tried to avoid being too pessimistic about what has been unfolding on the federal clemency front over the last 18 months, in part because I sincerely believed it would be nearly impossible to make the modern federal clemency process and products even worse. But this USA Today piece has me fearing that my own pessimistic instincts perhaps should now turn even darker (based on the statements and data points I have highlighted below):
A Justice Department push to shorten long drug sentences through President Obama's clemency powers has gotten off to a slow start: Obama has commuted the sentences of just two of the tens of thousands of federal inmates who have applied through the program. Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.
The result is a system that appears even more backlogged than it was before the initiative began. "The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that's pretty rare," said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March. "I think they've kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don't really exist," she said. "For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit" the criteria.
The clemency initiative was intended to help federal inmates who would have received shorter prison terms had they been sentenced today. That applies mostly to drug offenders after Congress shortened sentences for crack cocaine in 2010. To be eligible, inmates must have already served 10 years of their sentence.
Last year, a record 6,561 federal prisoners — three times the usual number — filed petitions with the Justice Department's Office of Pardon Attorney, which advises the president on all requests for clemency. Under the constitution, the president has the absolute power to grant pardons and commute sentences.
More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of lawyers who have volunteered to help eligible inmates through the often complicated and time-consuming process of seeking a commutation. But 13 months later, those lawyers have submitted just 31 petitions. And while Obama has used his pardon power to shorten the sentences of 43, most of those cases predate the clemency initiative. Over six years, Obama has granted just 0.2% of the commutation petitions submitted.
The Justice Department says it expects to recommend more commutations to Obama as it reviews the petitions. But that could take a while: In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage. "As OPA's existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president," the Justice Department said in its congressional budget justification.
Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork. And that paperwork can be daunting, requiring an examination of trial transcripts, the pre-sentence report (which is often sealed) and Bureau of Prisons files.
To be eligible under the program, inmates must be low-level offenders with no ties to gangs or cartels. They must have demonstrated good conduct in prison, have no significant criminal history and no history of violence. "There are gray areas, What is 'demonstrated good conduct in prison,' for example? Is that a pristine record?" said Cynthia Roseberry, a career public defender who now manages the Clemency Project 2014.
Without knowing how the Obama administration will apply those vague criteria, it's impossible to know how many could be eligible. "My hope is that thousands of those will meet the criteria, but I just can't speculate." Roseberry said. She said she expects the numbers to increase as the Clemency Project continues to screen for likely candidates for commutation. A Clemency Project screening committee has already notified more than 3,000 inmates it won't be accepting their cases. Once a case is accepted, it's parceled out to a volunteer attorney such as Mary Davis.
Davis represents Byron McDade, a Washington man sentenced to 27 years for cocaine trafficking even as his co-conspirators — who testified against him — got no more than seven. In 2009, after McDade had served his first seven years, the judge who sentenced him urged Obama to commute his sentence. "While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not," U.S. District Judge Paul Friedman wrote in another opinion last year,
So Davis assembled a 168-page petition with the help of two West Virginia University law students — Laura Hoffman and Amanda Camplesi — who spent a combined 122 hours on the case, collecting paperwork and visiting McDade at a federal prison in Pennsylvania. Davis said the work was complicated, even as a veteran federal defense attorney specializing in sentencing appeals. "I know there were attorneys signing up for this who don't do criminal defense work, and I would think it would be extremely difficult," she said.
McDade is an unusual case: Before being convicted in 2002, his only offense was a minor misdemeanor with a $10 fine. Markind, who worked on commutation cases as a Justice Department lawyer, said the clemency initiative did not relax Obama's "three strikes" policy making anyone with three or more criminal convictions ineligible for clemency. "Criminals with a record do not make the most appealing poster children," she said....
Mark Osler, a law professor at the University of St. Thomas in Minneapolis and a former prosecutor ... said the clemency process is already too bureaucratic and too distant from the ultimate decision-maker: the president. The Clemency Project hopes to cut through the process by helping to provide the Justice Department with better, more complete case files to review. But that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.
"We've failed the same way through different kinds of administrations, and the problem isn't the administration, it's the process," Osler said. "The sad thing is, every president recently has gotten to the end of their term and said, 'Hey, where are all the good clemency cases?' I sure hope that will change, but it's going to be a furious last year as these things start to come in even greater numbers."
It is hard to fault, and I am very disinclined to criticize excessively, all of the well-meaning and dedicated lawyers and administrators operating now in a system taking on Rube-Goldberg-quality with seemingly too many elements, criteria and moving parts. Still, by now having so many more people applying for clemency, along with so many more lawyers trying to figure out the meaning and importance of so many vague criteria, it is not surprising that the clemency push/project has been most successful in producing a lot more paperwork and so many more questions about what this system is seeking to achieve.
I have long believed that President Obama could and should create an independent commission or task force or working group that would be tasked with making federal clemency reform a priority in a very short period of time. Notably, as highlighted here, such a proactive approach to policing reform achieved a whole lot in just a matter of months:
On December 18, 2014, President Barack Obama signed an Executive Order establishing the President's Task Force on 21st Century Policing. The Task Force Members sought expertise from stakeholders and input from the public as they worked to identify best practices and make recommendations to the President. The Task Force submitted an initial report to the President on March 2, 2015 and released the final report on May 18, 2015.
Especially in light of all the new troubles and costs that the current approach is generating, I would urge the President to sign an Executive Order ASAP establishing the President's Task Force on 21st Century Clemency. The Task Force Members could seek expertise from stakeholders and input from the public as they worked to identify best clemency practices and make recommendations to the President no later than December 1, 2015. That would still give Prez Obama a full year to implement an improved clemency process and would leave truly helpful legacy and structure in place from whomever becomes his successor.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- President Obama (aka clemency grinch) grants a few holiday pardons and commutations
- Another account of the massiveness and messy process behind Prez clemency initiative
- Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations
- "For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more."
June 1, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Via similar 7-2 rulings, SCOTUS narrows reach of federal criminal and deportation statutes in Elonis and Mellouli
Via excerpts and links from this post at How Appealing I can effectively summarize the interesting Supreme Court work on criminal justice issues this morning:
The Court today issued four rulings in argued cases.
1. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Mellouli v. Lynch, No. 13-1034. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined....
4. And Chief Justice John G. Roberts, Jr. delivered the opinion of the Court in Elonis v.United States, No. 13-983. Justice Alito issued an opinion concurring in part and dissenting in part. And Justice Thomas issued a dissenting opinion....
In early news coverage, The Associated Press has reports headlined "High court throws out conviction for Facebook threats";... "Justices reverse deportation of man over minor drug crime"; ... Richard Wolf of USA Today reports that "Violent threats on Facebook may be OK, justices rule"; ... and "Justices sock it to Justice Department over drug deportations."
As the title of this post suggests, there are considerable similarities between what the Justices did in both Melloni (a low-profile immigration case) and Elonis (a high-profile federal criminal case). In both setting, via a 7-2 vote with Justices Thomas and Alito dissenting, the Court adopted a norrower construction of an applicable federal statute based on concerns that the federal government's (and lower courts') interpretation goes too far (for deportation purposes in Melloni, for criminal prosecution in Elonis). The rulings and opinions are quite limited in both cases, and Justice Alito's dissent in Elonis fittingly laments this reality at its outset:
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
I hope and expect to have more to say about the lengthy opinions in Elonis in future posts, although I suspect that the ruling will ultimately prove more consequental for what it failed to do and say than for what it actually does and says.
"The GOP should turn its attention to prosecutorial misconduct"
The title of this post is the subheadine of this notable new National Review commentary authored by Kevin Williamson. The provocative main headline for the piece is "When District Attorneys Attack," and here are excerpts:
Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.
The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.
But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs.
Sunday, May 31, 2015
Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
This Fox News piece, headlined "Nebraska AG fighting to block death penalty repeal from reversing death row sentences," highlights the fascinating fight now developing in the Cornhusker state following its formal repeal of its death penalty statutes:
Nebraska's top lawyer is headed to court to prevent the state's sweeping death penalty repeal from reversing sentences of those already on death row -- in the latest flare-up between the legislature and Republican Gov. Pete Ricketts' administration.
The legislature delivered a blow to the governor Wednesday when it voted 30-19 to override Ricketts' veto of legislation that would put an end to capital punishment in Nebraska. With the power play by the state's Republican-dominated legislature, Nebraska becomes the first conservative state in decades to end the death penalty.
But Ricketts' administration is not giving up the fight. While not contesting the ban's impact on future prosecutions, the administration is battling to prevent it from undoing prior death penalty sentences for the 10 inmates currently on death row.
In a written statement, state Attorney General Doug Peterson challenged part of the bill that says the "intent" of the legislature is that any death penalty "imposed but not carried out prior to the effective date of this act" be changed to "life imprisonment." Peterson said: "We believe this stated intent is unconstitutional."
He said that Nebraska's Board of Pardons has exclusive power to change final sentences imposed by courts. "Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State's authority to carry out the death sentences previously ordered by Nebraska's courts for the 10 inmates now on death row."
A Ricketts spokesman told FoxNews.com Friday that the governor agrees with the AG's assessment and will pursue the court's legal opinion on the matter as soon as possible....
"My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families," Ricketts said in a statement after Wednesday's vote, which broke across party lines and captured the votes necessary to override Ricketts' veto. The legislature had passed the anti-death penalty bill last week, 32-15.
Immediately after the vote, Republican Sen. Beau McCoy, who was against the ban, announced the formation of Nebraskans for Justice to start a petition drive to get reinstatement on the ballot in November.
But this was the third time the legislature voted to repeal capital punishment, which Republicans against it said no longer held to the values of their party, be it morally or fiscally. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," said Sen. Colby Coash, a Republican and death penalty opponent. "This program is broken. How many years will people stand up and say we need this?"
Other senators said they philosophically support the death penalty, but were convinced legal obstacles would prevent the state from carrying out another execution ever again. The last one in Nebraska was a 1997 electrocution. The state lost its practical ability to execute inmates in December 2013, when one of the three lethal injection drugs required by state law expired. Opponents charged that it was a poorly managed and inefficient government program.
Sentencing message sent: blazing a Silk Road for drugs gets you LWOP
A high-profile prosecution of a high-tech drug dealer culminated on Friday with the sentencing of Silk Road creator Ross Ulbricht. This Wired story provides an effective account of the sentencing, and includes these excerpts:
On Friday Ulbricht was sentenced to life in prison without the possibility of parole for his role in creating and running Silk Road’s billion-dollar, anonymous black market for drugs. Judge Katherine Forrest gave Ulbricht the most severe sentence possible, beyond what even the prosecution had explicitly requested. The minimum Ulbricht could have served was 20 years.
“The stated purpose [of the Silk Road] was to be beyond the law. In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts,” she told Ulbricht as she read the sentence, referring to his pseudonym as the Silk Road’s leader. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”
In addition to his prison sentence, Ulbricht was also ordered to pay a massive restitution of more than $183 million, what the prosecution had estimated to be the total sales of illegal drugs and counterfeit IDs through the Silk Road—at a certain bitcoin exchange rate—over the course of its time online. Any revenue from the government sale of the bitcoins seized from the Silk Road server and Ulbricht’s laptop will be applied to that debt.
Ulbricht had stood before the court just minutes earlier in navy blue prison clothes, pleading for a lenient sentence. “I’ve changed. I’m not the man I was when I created Silk Road,” he said, as his voice grew hoarse with emotion and cracked. “I’m a little wiser, a little more mature, and much more humble.”
“I wanted to empower people to make choices in their lives…to have privacy and anonymity,” Ulbricht told the judge. “I’m not a sociopathic person trying to express some inner badness.”
Ulbricht’s sentencing likely puts the final seal on the saga of Silk Road, the anarchic underground market the 31-year-old Texan created in early 2011. At its peak, the Dark Web site grew to a sprawling smorgasbord of every narcotic imaginable — before Ulbricht was arrested in a public library in San Francisco in October of 2013. Eighteen months later, he was convicted in a Manhattan court on seven felony charges, including conspiracies to traffic in narcotics and launder money, as well as a “kingpin” charge usually reserved for the leaders of organized crime groups....
Ulbricht’s defense team has already said it will seek an appeal in his case. That call for a new trial will be based in part on recent revelations that two Secret Service and Drug Enforcement Administration agents involved in the investigation of the Silk Road allegedly stole millions of dollars of bitcoin from the site. One of the agents is even accused of blackmailing Ulbricht, and of allegedly selling him law enforcement information as a mole inside the DEA. But the judge in Ulbricht’s case ruled that those Baltimore-based agents weren’t involved in the New York FBI-led investigation that eventually took down the Silk Road, preventing their alleged corruption from affecting Ulbricht’s fate.
Speaking to press after the sentencing, Ulbricht’s lead attorney Joshua Dratel said that Forrest’s sentence was “unreasonable, unjust, unfair and based on improper consideration with no basis in fact or law.” He added: “I’m disappointed tremendously.”
In emotional statements at the hearing, the parents of drug users who had overdosed and died from drugs purchased from the Silk Road called for a long sentence for Ulbricht. “I strongly believe my son would still be alive today if Mr. Ulbricht had never created Silk Road,” said one father whose 25-year old son had died from an overdose of heroin, requesting “the most severe sentence the law will allow.”
In the weeks leading up to his sentencing hearing, Ulbricht’s defense team attempted to lighten his punishment with arguments about his motives and character, as well as emphasizing the Silk Road’s positive effect on its drug-using customers. In more than a hundred letters, friends, family, and even fellow inmates pointed to Ulbricht’s idealism and lack of a criminal history. And the defense argued that Silk Road had actually reduced harm in the drug trade by ensuring the purity of the drugs sold on the site through reviews and ratings, hosting discussions on “safe” drug use, and giving both buyers and sellers an avenue to trade in narcotics while avoiding the violence of the streets.
But the prosecution countered that any protection the Silk Road offered drug users was dwarfed by the increased access it offered to dangerous and addictive drugs. And beyond the two parents who spoke at the Friday hearing, it pointed to six individuals who it claimed had died of drug overdoses from drugs purchased on the Silk Road.
In her statement preceding Ulbricht’s sentencing, Judge Forrest fully sided with the prosecution against the defense’s “harm reduction” argument, arguing that the Silk Road vastly expanded access to drugs. “Silk Road was about fulfilling demand, and it was about creating demand,” she said. “It was market-expanding.”
She also tore into the argument that the Silk Road reduced violence in the drug trade, pointing out that most of the academic papers submitted by the defense to support that argument focused only on the protection for the final buyer of drugs. But that digital remove, she argued, did nothing to prevent violence at any other point in the narcotics supply chain, from production to distribution. “The idea that it’s harm reducing is so very narrow,” she said. “It’s…about a privileged group, sitting in their own homes, with their high speed internet connections.”
The Justice Department also argued in their letter to Judge Forrest that Ulbricht should be made an example of to stop even more Dark Web market kingpins from following in his footsteps. After all, dozens of copycat sites and advancements on the Silk Road market model have sprouted in the years since its takedown, including the Silk Road 2, Evolution, and the currently largest Dark Web black market to survive law enforcement’s attacks, Agora. To combat the spread of those anonymous bazaars, prosecutors asked Judge Forrest to “send a clear message” with a sentence for Ulbricht well beyond the mandatory minimum.
Judge Forrest sided with the prosecution on that point, too, arguing that she needed to create a strong deterrent for the next Dread Pirate Roberts. “For those considering stepping into your shoes…they need to understand without equivocation that there will be severe consequences,” Forrest said.
The defense’s arguments about Ulbricht’s character and his idealistic motives were also undercut by accusations that Ulbricht had paid for the murder of six people, including a potential informant and a blackmailer. Those accusations never became formal charges in Ulbricht’s case — five out of six of the murder-for-hires appear to have been part of a lucrative scam targeting Ulbricht, with no actual victims.
But those murder accusations nonetheless deeply colored Ulbricht’s trial, and strongly influenced his sentence. “I find there is ample and unambiguous evidence that [Ulbricht] commissioned five murders to protect his commercial enterprise,” Forrest said, leaving out one alleged attempted murder for which Ulbricht was charged in a different case.
With those attempted murders as context, Forrest was merciless in her assessment of Ulbricht’s seeming multiple personalities: the altruistic and admirable young man described in the letters sent to her as evidence of his character, versus the callous drug lord she saw in his actions. “People are very complicated, and you are one of them,” she said simply. “There is good in you, Mr. Ulbricht. There is also bad. And what you did with the Silk Road was terribly destructive.”
May 31, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)
Thursday, May 28, 2015
US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Regular readers are likely to recall the remarkable series of opinions issued by US District Judge John Gleeson in recent years in which the judge has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. Now I have learned, thanks to this great new Margy Love post at the Collateral Consequences Resource Center, that Judge Gleeson's latest opinion examines the collateral workplace consequences of an old federal fraud conviction in the course of ordering expungement. Here is how the must-read opinion in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here), starts and ends:
Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs. Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases. In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision. I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.
It will be interesting to see how the Justice Department responds to this decision, and also how the Second Circuit will consider this matter if (when?) the feds appeal.
Time magazine devotes cover story to "Why the End of Capital Punishment Is Near"
I am intrigued to see that the new issue of Time magazine has a cover picture of an empty electric chair and this text: "The Last Execution: Why the Era of Capital Punishment is ending." Here are excerpts from the magazine's lead article:
Despite extraordinary efforts by the courts and enormous expense to taxpayers, the modern death penalty remains slow, costly and uncertain. For the overwhelming majority of condemned prisoners, the final step—that last short march with the strap-down team—will never be taken. The relative few who are killed continue to be selected by a mostly random cull. Tsarnaev aside, the tide is turning on capital punishment in the U.S., as previously supportive judges, lawmakers and politicians come out against it.
Change is not coming quickly or easily. Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it. On this issue, our peer group is not Britain and France; it’s Iran and China. Most U.S. states authorize the death penalty, although few of them actually use it. We value tolerance and diversity — but certain outrages we will not put up with. Maybe it’s the teenage terrorist who plants a bomb near an 8-year-old boy. Maybe it’s a failed neuroscientist who turns a Colorado movie theater into an abattoir. We like to think we know them when we see them. Half a century of inconclusive legal wrangling over the process for choosing the worst of the worst says otherwise....
Even in Texas, which leads the nation in executions since 1976 (when the U.S. Supreme Court approved the practice after a brief moratorium), the wheels are coming off the bandwagon. From a peak of 40 executions in 2000, the Lone Star State put 10 prisoners to death last year and seven so far in 2015. According to the state’s Department of Corrections, the number of new death sentences imposed by Texas courts this year is precisely zero. There, as elsewhere, prosecutors, judges and jurors are concluding that the modern death penalty is a failed experiment.
The shift is more pragmatic than moral, as Americans realize that our balky system of state-sanctioned killing simply isn’t fixable. As a leader of the Georgia Republican Party, attorney David J. Burge, recently put it, “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”
This unmistakable trend dates back to the turn of the century. The number of inmates put to death in 2014 was the fewest in 20 years, while the number of new death sentences imposed by U.S. courts — 72 — was the fewest in modern American history, according to data collected by the Death Penalty Information Center. Only one state, Missouri, has accelerated its rate of executions during that period, but even in the Show Me State, the number of new sentences has plunged.
Thirty-two states allow capital punishment for the most heinous crimes. And yet in most of the country, the penalty is now hollow. Since the start of 2014, all but two of the nation’s 49 executions have been carried out by just five states: Texas, Missouri, Florida, Oklahoma and Georgia.
Accompanying this coverr story are these two commentaries for and against capital punishment:
Wednesday, May 27, 2015
Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
As reported in this local article, the "death penalty has been repealed in Nebraska." Here is how:
In a historic vote Wednesday, senators voted 30-19 to override a veto from Gov. Pete Ricketts. The bill (LB268) had passed a week ago on a 32-15 vote.
Ricketts had worked hard in the last week to get senators to flip their votes. He needed three to change their minds, but only two -- Sens. Jerry Johnson of Wahoo and John Murante of Gretna -- changed their votes to sustain the veto.
"This is it," said Sen. Ernie Chambers of Omaha as he entered the legislative chamber to begin the debate on a motion to override the veto. Chambers has offered a bill to repeal the death penalty 40 times in his tenure of the Legislature. In 1979, Chambers won legislative approval of death penalty repeal, but the bill fell victim to a veto by Gov. Charles Thone.
Nebraska lawmakers debated more than two hours Wednesday on a motion to override Gov. Pete Ricketts' veto of a death penalty repeal bill. "Once we take this step, there is not going to be a falling apart of this state," Omaha Sen. Ernie Chambers said at the start of discussion on the floor of the Legislature. "This building will not implode."
The historic significance of the event attracted a large group of onlookers, legislative staffers and media watched as debate began at 1:30 p.m.... Miriam Thimm Kelle, sister of Rulo murder victim James Thimm, was among onlookers in the legislative chamber Wednesday. Thimm's murderer, Michael Ryan, died this week on death row. Kelle has lobbied in support of abolishing the death penalty.
On Tuesday, Vivian Tuttle, whose daughter Evonne Tuttle was killed in the Norfolk bank robbery, joined the governor at a press conference to ask senators to sustain the veto. "I want justice for my grandchildren," she said. "I want justice for all the other families."
Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence
Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here). Here is how the majority opinion gets started:
We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender. In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole. State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender. We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.
May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, May 26, 2015
"Implementing Just Mercy"
The title of this post is thew title of this notable new piece authored by William Berry III now available via SSRN. Here is the abstract:
This book review essay explores the connection between Bryan Stevenson's recent book, "Just Mercy: A Story of Justice and Redemption", and the development of concepts of individualized sentencing under the Sixth and Eighth amendments by the Supreme Court.
In light of these steps toward individualizing sentencing, this book review essay imagines a serious application of the principles of just mercy that Stevenson has championed in his legal career to the criminal justice system. Specifically, this essay argues that individualized consideration of criminal offenders throughout the criminal justice process — from policing to sentencing — is necessary to achieve the compatible (not competing) goals of justice and mercy.
The essay proceeds in three parts. Part One describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders. In Part Two, the essay shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity. Finally, in Part Three, the essay outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.
SCOTUS grants cert on a federal sentencing case and state capital case
This morning's Supreme Court order list, available here, includes two grants of certiorari. Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:
Lockhart v. US: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.
Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.
Sunday, May 24, 2015
"Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
This new ars technica posting provides the title of this post and it provides background and links to a high-energy effort by a high-profile defendant to get a lower sentence for his high-tech drug dealing crimes for which he will be sentenced in the coming week. Here are excerpts:
Convicted Silk Road founder Ross Ulbricht and no less than 97 of his friends and family members have written to a judge just days prior to sentencing, asking her to impose the most lenient sentence possible. (Ars has posted the letters online along with the court filing of photos of Ulbricht and many family and friends.)
Under federal mandatory minimum sentencing guidelines, Ulbricht faces at least 20 years in prison and possibly as long as life behind bars. “Silk Road turned out to be a very naive and costly idea that I deeply regret,” he wrote in his own 1.5 page letter to United States District Judge Katherine Forrest filed on Friday.
Ulbricht’s own letter marks the first time he has shown any public remorse during the entire saga, during which he did not testify. His attorney, Joshua Dratel, spun unsubstantiated theories that while Ulbricht created Silk Road, unnamed mysterious others took over the site and should be the ones prosecuted for the crime. Dratel previously vowed to appeal the verdict.
In February 2015, Ulbricht was convicted of seven charges including three drug counts: distributing or aiding and abetting the distribution of narcotics, distributing narcotics or aiding and abetting distribution over the Internet, and conspiracy to violate narcotics laws. He was also convicted on a fourth count of conspiracy to run a "continuing criminal enterprise," which involves supervising at least five other people in an organization. In addition, Ulbricht was convicted on conspiracy charges for computer hacking, distributing false identification, and money laundering.
Prior related posts:
- You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
- Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
- Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity
Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings. The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:
Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”
Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges. Videos, especially wellproduced ones, can be powerful. In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14minute video as part of his sentencing. Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.
As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before. The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works. Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.
Yet efforts like those on behalf of Mr. Chatwal are hardly standard. While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack-up-the-hours, fight-tooth-and-nail defense like Mr. Chatwal did.
Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules. “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday. He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”
Mr. Jayadev’s nonprofit, Silicon Valley DeBug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same. The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up. With a $30,000 grant from the Open Society Foundation, DeBug is now training public defenders around the country....
LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.
“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a onesided process, and now it’s like the scales are being balanced out.
Saturday, May 23, 2015
You be the prosecutor: what sentence will you recommend for convicted "sex on beach" couple?
Regular readers may recall this post from earlier this month, titled "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," which covered the possibility of one member of an indecent couple in Florida facing a mandatory 15-year prison sentence for shoreline dirty dancing with his girlfriend. But this follow-up post reported that State Attorney Ed Brodsky indicated that "he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach." Now this news update on the notable case indicates that sentencing is likely to be scheduled in the coming weeks and includes this partial preview:
Jose Caballero, 40, and Elissa Alvarez, 20, were convicted May 4 on two counts each of lewd and lascivious behavior for having sex on Cortez Beach on July 20, 2014. The convictions carry a maximum sentence of 15 years in prison and require both to register as sex offenders....
The State Attorney's Office has said it will not seek the maximum penalty for either defendant, but is looking into jail time for both of them. [Assistant state attorney prosecutor Anthony] Dafonseca said they'd seek a harsher punishment against Caballero, who has served prison time for cocaine trafficking.
The defendants were represented by attorney Ronald Kurpiers, but Alvarez will be represented at sentencing by Greg Hagopian, according to Dafonseca. Hagopian said he didn't want to discuss the reason for Alvarez's switch. She had no criminal record before her conviction.
A few people filed letters on behalf of the defendants, saying the judge should take it easy on Alvarez and Caballero and not make them register as sex offenders. "You are likening these two individuals to deplorable people who have actually taken advantage of or violated children," read a letter signed by Femi Olukoya. "This state needs to grow up and that can start with you," read another letter.
The jury found the couple guilty after a 1 1/2 day trial and only 15 minutes deliberation. One of the witnesses took video of the two in July, showing Alvarez moving on Caballero in a sexual manner in broad daylight.
Unsuprisingly, prior posts about this case generated a lot of notable commentary, and now I am eager to focus discussion on how folks think the state prosecutors here ought to exercise their sentencing discretion. Specifically, I would really like folks to put themselves in the shoes of the Florida prosecutors and state, with some specificity, exactly what sentence they think should be recommended to the sentencing judge in this unusual criminal case.
Prior related post:
- Imprisonment for 15 years for sex on the beach?!?! Really?!?!
- Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions
Friday, May 22, 2015
"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"
The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:
For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.
I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.
Here is some of what she goes on to say about this very interesting topic:
While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established). There is a trend toward sexual contact with teenage males. Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.
In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.
Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped. Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty. Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.
Of course, I don’t condone this behavior in the least. I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.
Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men. Treatment providers aren’t given special instruction in dealing with women. The treatment programs are written for men, using statistics about male offenders and past treatment models of men. Imagine! Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.
At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders. This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work. But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.
A lack of evidence should never be the reason for poor rehabilitation. It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future. When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon. By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.
Research about recidivism rates is also based primarily on male populations and varies drastically. Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all. But since the law doesn’t differentiate among sex offenders, these studies are nearly useless. A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child. The lumping-together of sex offenses creates confusion even while it feeds public hysteria....
Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment. It does nothing to address the complex emotional choices that led people to their crimes. Rather, the justice system beats down already hurting women.
May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack
"Federal Sentencing Error as Loss of Chance"
The title of this post is the title of this notable new piece available via SSRN authored by Kate Huddleston. Here is the abstract:
Federal courts have taken the wrong approach to discussing sentencing error. Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness. This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error. What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.
The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance. Part I highlights the role that probability plays in recent sentencing opinions. It argues that, as an empirical matter, loss of chance is an accurate way to describe sentencing error given the anchoring effect of the Federal Sentencing Guidelines on sentencing practices. Part II makes the structural case for conceptualizing Guidelines sentencing error as a problem of probability, arguing that failure to recognize the probability dispute has obscured an underlying debate about the continued vitality of the Guidelines system. After United States v. Booker, the Sentencing Guidelines are advisory in principle and influential in practice. Part II argues that treating Guidelines error as loss of chance — and a loss that may constitute a fundamental miscarriage of justice — is necessary in order to enforce a Guidelines regime that is neither too rigid nor wholly indeterminate.
Thursday, May 21, 2015
"How America Overdosed on Drug Courts"
The title of this post is the headline of this lengthy and critical analysis of the modern drug courts movement appearing in the Pacific Standard magazine. The subheadling highlights its main themes: "Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger." I consider this piece a must-read for all those interested in drug sentencing reform, and here are excerpts:
The first drug court opened in Florida’s Miami-Dade County in 1989, near the height of the hysteria in this country over drugs, particularly crack cocaine. Both conservatives and liberals found something to love: Conservatives liked the potential for reduced prison spending, and liberals liked the emphasis on therapy. From the start, however, critics voiced concerns about “cherry picking,” because the courts only allowed into the program defendants who seemed likely to succeed whether or not they received help. This sort of selectivity was built into the system: The federal laws that determine eligibility for grants to create new drug courts (ongoing funding is primarily state and local) require that the courts exclude people with a history of violent crime. Many drug courts also bar people with long non-violent criminal histories. Predictably, this eliminates many of those who have the most serious addictions — the very people the courts, at least in spirit, are supposed to help.
Proponents of drug courts celebrate the fact that those who participate do better than similar defendants who are simply incarcerated or given standard probation. This is unquestionably true. “The average effect is to reduce new crimes by 10 to 15 percent,” says Douglas Marlowe, the chief of science, policy, and law for the National Association of Drug Court Professionals. (Those crimes include not only drug sales and possession but also crimes committed to pay for drugs, such as burglary and robbery.) “The vast majority of evaluations show that they work,” says Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida, “and the effect size is larger than any other large-scale criminal justice intervention.”
These improvements are seen mainly in people who graduate, however, which is only roughly half of those who participate — a fact that the NADCP and other advocates tend to play down. Worse, defendants who start but do not complete drug court often serve longer sentences, meted out by judges as punishment, than they would have had they simply taken a plea and not tried to solve their drug problem. That strikes many critics as a manifest injustice. “This is intensifying the drug war on half of the people,” says Kerwin Kaye, an assistant professor of sociology at Wesleyan University. “It’s not stopping the drug war, it’s continuing it by other means.” Not only that, many people who fail to graduate drug court often go on to become worse offenders, compared to both graduates and to similar defendants who do not participate in drug courts. According to a 2013 study of New York’s drug courts conducted by the Urban Institute and the Center for Court Innovation, which included data on more than 15,000 defendants, 64 percent of non-graduates were rearrested within three years, whereas only 36 percent of graduates were. Among comparable defendants who did not participate in drug courts, just 44 percent were re-arrested in that period, suggesting that those who tried but flunked drug court did worse than those who served their time.
May 21, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Wednesday, May 20, 2015
Spotlighting who profits from "Piling on Criminal Fees"
Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:
Criminal courts sometime function as fee-generating machines.... The problem here is not any single criminal fee; the problem is how they stack up to create injustice. That's why we are calling for a statewide Commission on Criminal Fees.
In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis. We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice. As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines. This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...
The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests. What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?
And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill. Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.
Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike. The trouble comes when nobody minds the total effects of all these fees on individuals. Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero. We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.
May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, May 19, 2015
Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods. Here are the details:
When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?
In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks. The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.
“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing. “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”
The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs. One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales. That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems. And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions. Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.
Regardless, Ulbricht isn’t likely to receive a light sentence. The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time. In all, he faces a minimum of 30 years in prison and a maximum of life. Ulbricht’s defense team has already said it plans to appeal the case.
The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road. But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....
To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance. Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users. He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”
The full text of this Ulbricht Sentencing Defense Letter can be accessed at this link.
Prior related posts:
- You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
- Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
Monday, May 18, 2015
Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl
The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight. Here are excerpts (with my emphasis added):
The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.
About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....
While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....
Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.
The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...
Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.
So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....
The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.
Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.
In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....
Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."
I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.
Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.
DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)
I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire. Thus, when reading the DC Circuit's recent opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest. Here is how the per curiam opinion gets started:
Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation. See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995). But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.
Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:
“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008). I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance. But the burden of providing a brief explanation is small and the advantages great. “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”). It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.
Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:
When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.
In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement. Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.
May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Six new SCOTUS opinions, but nothing too exciting for sentencing fans
The next six weeks are the SCOTUS law nerds version of March Madness: the regular SCOTUS season of hearing oral arguments and deciding relatively easy cases are over, and the last weeks of the Term are going to involve the handing down of many notable opinions on many notable topics. The madness began today with the release of six opinions, three of which had criminal justice elements, but none of which were all that controversial nor especially consequential.
Howard at How Appealing has a great round-up of the basics of the six new opinions here, and Kent at Crime & Consequences has this helpful substantive review of the three rulings with some criminal justice consequence.
For those looking to set their (always tentative) SCOTUS calendars, I will predict now that we get the Elonis Facebook threat ruling either next Tuesday or the following Monday but will not get any other significant criminal justice ruling until the last few weeks of June.
Sunday, May 17, 2015
"Does Michigan's sex offender registry keep us safer?"
The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:
It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies. Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.
Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons. It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031. "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.
Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police. Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names. The registries are widely monitored by parents, potential employers and cautious neighbors.
To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online. But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional. For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.
Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....
Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors. No one was charged.
At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law. But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life. "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."
But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people. The supporters also dismiss the research, saying it's impossible to determine who might re-offend. They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.
"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."
Many parents say the registries makes them feel safer. Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know." Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."
Sex offender registry laws were first passed in the 1990s following a string of horrific child murders. The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.
Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives. In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....
Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective. And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law. For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.
Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes. A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....
Nationally, there are about 800,000 people registered as sex offenders across the 50 states. Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens. It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....
Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant. Some, though, think tougher laws are in order. And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.
Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."
A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."
J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees. He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....
While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.
May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack
After reversal of most serious charges, elderly nun and fellow peace activists released from federal prison
As reported in this AP article, headlined "3 anti-nuclear activists released from federal prison," a notable federal civil disobedience case has taken some notable new turns this month. Here are the details:
An 85-year-old nun and two fellow Catholic peace activists who vandalized a uranium storage bunker were released from prison on Saturday, their lawyer said. Attorney Marc Shapiro says Sister Megan Rice was released just hours after 66-year-old Michael Walli and 59-year-old Greg Boertje-Obed also were let out of prison.
The trio was ordered released by a federal appeals court on Friday. The order came after the 6th U.S. Circuit Court of Appeals in Cincinnati last week overturned their 2013 sabotage convictions and ordered resentencing on their remaining conviction for injuring government property at the Y-12 National Security Complex in Oak Ridge.
The activists have spent two years in prison. The court said they likely already have served more time than they will receive for the lesser charge.
On Thursday, their attorneys petitioned the court for an emergency release, saying that resentencing would take weeks if normal court procedures were followed. Prosecutors responded that they would not oppose the release, if certain conditions were met. "They are undoubtedly relieved to be returning to family and friends," said Shapiro, who represented the activists in their appeal.
Rice, Walli and Boertje-Obed are part of a loose network of activists opposed to the spread of nuclear weapons. To further their cause, in July 2012, they cut through several fences to reach the most secure area of the Y-12 complex. Before they were arrested, they spent two hours outside a bunker that stores much of the nation's bomb-grade uranium, hanging banners, praying and spray-painting slogans....
Rice was originally sentenced to nearly three years and Walli and Boertje-Obed were each sentenced to just over five years. In overturning the sabotage conviction, the Appeals Court ruled that their actions did not injure national security.
Boertje-Obed's wife, Michele Naar-Obed, said in a phone interview from her home in Duluth, Minnesota, she hoped her husband would be released from prison by Monday, which will be his 60th birthday. Naar-Obed previously served three years in prison herself for anti-nuclear protests. She said that if their protests open people's minds to the possibility of life without nuclear weapons, then "yeah, it was worth it."
Prior related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
- After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
May 17, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Saturday, May 16, 2015
"Towards a Theory of Mitigation"
The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:
Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime. The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment. The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.
This Article seeks to restore mitigation to a prominent role in modern sentencing. First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence. Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.
Friday, May 15, 2015
Spectacular work on sex offender registration rules and other "collateral" stories at CCRC
Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center. The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans. Here is how it gets going:
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.
It is risky to try to generalize about the results of our study, However, we found that registration laws seem to fall into three general categories:
- 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
- 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
- 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years.
And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:
- Georgia high court extends Padilla to parole eligibility
- 27 Senators urge Obama to “ban the box” in federal hiring
- Leaked White House memos detail president’s pardon policy
- Collateral consequences and the transforming effect of the drug war
- Vermont becomes the 16th state to ban the box!
May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack
"America’s Deadliest Prosecutors"
The title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty. Here are excerpts:
“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”
Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.
The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.
What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.
Cox is one of them. Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013. Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder. She then sent a U.S. military veteran with paranoid schizophrenia to death row. Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms. The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...
Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008. (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.) The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment. That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....
Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001. Over the past five years, Oklahoma County has had only one death sentence. Lynne Abraham secured 45 death sentences as the Philadelphia district attorney. Since she retired in 2010, the new district attorney has obtained only three death sentences. Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina. Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit. Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row. Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.
Thursday, May 14, 2015
Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?
As this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:
The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.
Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.
In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.
Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.
But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.
But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.
In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not. She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void. The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....
Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior. They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message. While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.
“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”
He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.
Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.
For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.
I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
- Is it unseemly I wish I could watch the Boston bombing closing arguments?
Extended coverage of messy Oklahoma execution and execution methods
The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal." This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:
Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life. They often use three drugs. The first is an anesthetic, to render the prisoner unconscious. The second is a paralytic. The third, potassium chloride, stops the heart.
What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer — a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so....
[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby. But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out. With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.
Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training. But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.
The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:
Hanging is perhaps the quintessential American punishment. In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive. (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.) But the simplicity of the noose triumphed, and its use spread as the republic grew.
In theory, a hanging is quick and relatively painless: the neck snaps immediately. But hangings can be grisly. If the rope is too short, the noose will slowly strangle the condemned. If the rope is too long, the force of the fall can decapitate the person.
The Supreme Court has never struck down a method of execution as unconstitutional. But states have at times tried to make the process more humane. “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”
Tuesday, May 12, 2015
Is it unseemly I wish I could watch the Boston bombing closing arguments?
The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process. From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime. I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way. But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.
For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:
In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?
But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.
Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”
Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.
The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.
Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count. Tsarnaev faces 17 charges that carry the possibility of the death penalty.
US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.
Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death. A split jury would result in a life sentence.
But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one. “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.
Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence. O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.
The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....
Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”
Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
- Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
Monday, May 11, 2015
"Brain Science and the Theory of Juvenile Mens Rea"
The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.
Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?
The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev. This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:
While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.
The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.
But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.
Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”
Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.
No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....
[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.
Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.
In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence. Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.
The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.
In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?". I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber. But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial. I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.
A few prior related posts:
- Now on to the real trial: "Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing"
- "Sister of slain MIT officer opposes death penalty for Tsarnaev"
- Parents of Boston bombers' young victims: "To end the anguish, drop the death penalty"
- Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
- As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber
UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:
Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.
"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."
Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.
Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.
Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.
You be the judge: what federal sentence for latest CIA media leaker?
As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:
The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security. By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.
Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions. The range of options she has to consider is broad.
Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer. Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.
Neither side has offered a specific recommendation on prison time. Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.
Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”
But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.
But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different. “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence. “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”
Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.
Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.
Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....
Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.
Prior related posts:
- Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
- Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
Sunday, May 10, 2015
"Too Many People in Jail? Abolish Bail"
The title of this post is the headline of this notable New York Times op-ed authored by Maya Schenwar. Here are excerpts:
How can we reduce the enormous populations of our country’s local jails?
Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.
Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place? Usually, it is because they cannot afford bail....
This is a national problem. Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.
In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.
Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)
There is also evidence that bail is not necessary to ensure that people show up for trial. In Washington, D.C., a city that makes virtually no use of monetary bail, the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.
In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences. Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.
Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children. By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.
Bail also raises issues of racial injustice. A number of studies have shown that black defendants are assigned higher bail amounts than their white counterparts. This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.
Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions
As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:
State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.
Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.
The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.
The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."
Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.
Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."
Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.
Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.
"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...
A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.
Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....
Alvarez and Caballero are in the Manatee County jail awaiting sentencing.
Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.
For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial. How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?
Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences. Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.
Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero? Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?
Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable. In other words, only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.
It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction. But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled by executive branch fiat.
Prior related post:
Friday, May 08, 2015
Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms
This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:
Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.
Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants. And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.
Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records. That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.
While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.
Grassley’s rhetoric has not encouraged optimism. He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont. He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”
Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences. Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.
The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.” But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.
Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....
This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure. At long last there is growing support for changing that. Iowa’s senior senator should not stand in the way.
Some recent related posts:
- Sparring over sentencing reform lingo involving the media and Senator Grassley
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Senators respond to NY Times criticisms of their sentencing work
- Iowa faith leaders urge Senator Grassley to move forward with drug sentencing reforms
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Senator Grassley again expresses interest in talking about federal criminal justice reform
- Senator Grassley yet again says he is open to some federal sentencing reforms
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
May 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Thursday, May 07, 2015
Electrifying Tennessee fight over electric chair as back up execution method
BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee. This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet." Here are some details from the start of the article:
Can death-row inmates challenge the constitutionality of electrocution? The Tennessee Supreme Court will soon decide.
Death penalty states once phased out the electric chair in favor of drugs — for humane reasons. Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.
On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality. Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.
But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.
Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy. Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.
“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.
Wednesday, May 06, 2015
Boston bombing defense team turns to brain science in making mitigation case
As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:
The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.
Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....
Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”
“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”
He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”
Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.
He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.
Tuesday, May 05, 2015
"What can one prosecutor do about the mass incarceration of African-Americans?"
The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin. For many reasons (as perhaps the highlights below suggest), the full article is a must-read:
Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons. The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent. The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison. How, Chisholm wondered, did the work of his own office contribute to these numbers? Could a D.A. do anything to change them?
The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.
Chisholm decided to let independent researchers examine how he used his prosecutorial discretion. In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office. Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing. According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).
Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety. “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me. “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time. Prosecutors have to redefine their proper role in a new era. Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....
Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans. The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....
Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place. But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy. “In one, you are a case processor,” he said. “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system. But if you want to make a difference you have to do more than process cases.”
So Chisholm began stationing prosecutors in neighborhoods around Milwaukee. “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said. He and his team started asking themselves in every instance why they were bringing that case. “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them. And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”
May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
"What are We Hoping for? Defining Purpose in Deterrence-Based Correctional Programs"
The title of this post is the title of this important and timely new paper by Cecelia Klingele now available via SSRN. Here is the abstract:
One of the most popular program models in criminal justice today is that popularized by Hawaii Opportunity Probation with Enforcement (HOPE). HOPE and other programs like it grow out of research suggesting that the most effective way to prevent violations of conditions of supervision is to more accurately detect them, respond to them immediately, and impose consistent and predictable sanctions for every detected violation. Proponents of these programs assert that they not only change behavior for the better, but that they increase the legitimacy of probation by addressing violations as they occur.
Even if program compliance rates are as high as supporters claim, serious questions remain about whether these programs, while advancing compliance, may undermine the larger goal of promoting desistance from crime. Anecdotal evidence suggests that both the conditions and sanctions imposed on program participants are often significantly more severe than the model itself requires, and are sometimes at odds with encouraging behavior that is known to foster desistance. This Essay argues that system actors have an obligation to consider the purpose of correctional intervention when evaluating program "success."
Monday, May 04, 2015
"Are video visits a smart innovation for jails — or yet another way to exploit families?"
The title of this post is the title of this notable lengthy new Quartz piece. Here are excerpts:
To visit her son in jail in the suburbs of Austin, Texas, Barbara Brutschy would get on a plane and fly 1,700 miles from her home in Oregon. She would arrive at the jail, go through security checks, including metal detectors, all airport-style. An hour later, she would sit down in a booth, wait, and after a couple of minutes her son, Richard Fisk, would appear — on a video screen.
Video visitation, as it’s called, is the latest innovation in America’s jails. Hundreds of jails have introduced on- and off-site video visitation since it became widely available two-to-three years ago. (In 95 known cases, jails are using it to replace in-person visits altogether.) Jail authorities say it’s more secure, less costly to supervise, and better for inmates too, as it allows jails to extend visiting hours. Prisoner advocates, once optimistic about its potential, now see something more sinister: A financially-squeezed jail system and a handful of private communications companies creating an environment where inmates are exploited, often at considerable financial and emotional cost....
Twelve million people pass through the US jail system each year, most of them in pre-trial detention or serving short terms. Jails are run by counties, while prisons, where inmates serve longer sentences, are managed by state and federal authorities. Video visitation is much more commonly used in jails reported advocacy group Prison Policy Initiative.
“The whole purpose of video visitation was to cut down on man hours and the movement inside the jail of our inmates,” said Charlie Littleton, chief deputy sheriff at Bastrop County, Texas, which introduced video visitation and banned face-to-face in November 2014.
Jail authorities commonly say they cut labor costs when guards do not have to escort prisoners from their cells to the visiting room. It’s unclear exactly how much the jails are saving. When asked about whether they had calculated their savings over the course of the ban, Littleton said they hadn’t “run the figures”.
Another benefit that’s touted is increased safety through a reduction of contraband and violent incidents. But because visits in county jails often occur through glass — the kind you see in movies, where the inmate sits on one side of the partition and the visitor on the other, with phone receivers on both ends — how video visits promote safety is not apparent. In fact, records from Travis County showed an overall increase in infractions and contraband after banning face-to-face visitation.
Authorities say that installing video systems makes it easier for families to visit. That’s how the systems are marketed as well. “By leveraging the technology, facilities are able to provide far more hours of operation for visits for friends and family,” Tim Eickhoff, a vice president at GTL told Quartz.
But those extended hours can come with a catch, prisoners and their families have found. In some cases, the frequency of free on-site visits has been curtailed, forcing families to use paid off-site services to communicate....
The financial cost to prisoners and their families of video calls can be considerable. A Securus video call can cost as much as $1.50 per minute–all of which falls on the outside caller. That means a 20-minute video call can cost as much as $30 — for a service not very different from Skype or Google Hangouts, that most of us in the outside world use for free. Some companies also add a flat service charge, further hiking up the fees. In Buchanan County, Missouri, the fee to simply deposit money into your TurnKey Corrections phone account is $8.95....
Starting in 2013, the Federal Communications Commission initiated efforts to limit how much prisons could charge inmates for phone calls, amid public outrage at reports of exorbitant costs. One 15-minute phone call, operated by a private communications company, can cost as much as $12.95 (paywall). But while the commission is beginning to impose caps on costs of phone calls, it did not extend the limits to video visits. (It has “sought comment on the matter” a spokesperson for the FCC tells Quartz.)
“Video visitation is absolutely unregulated. Phones are beginning to be regulated, and I think that most people in the field see video visitation as a way to skirt around that regulation,” says Josh Gravens of advocacy group Texas CURE. The cost is too much, he says, for the quality of the call. “In this day and time, we have such a technological advantage. It’s not even justifiable.”
Private communications companies typically add sweeteners to encourage jails to sign up for their services. These can include the free installation of the systems, as well as significant commissions to the jails for each video call ranging from less than 1% to half of what an inmate is charged, and even 63% in one case, found the PPI report. For jails, the sweeteners, along with the savings they anticipate, can offer a way to bolster their cash-strapped budgets. As Ann Jacobs, director of the Prison Reentry Institute at the John Jay College of Criminal Justice in New York noted, although jail budgets have grown along with the prison population, that growth has only been enough to accommodate basic needs of the facilities. “Correctional authorities are encouraged to get creative where to find profit.”...
Video visits exact an emotional as well as financial toll on inmates and their families. Jail sentences are relatively short, but some inmates linger in pre-trial detention for as long as six years. Research maintains that the best kind of meeting for inmates is a contact visit, the kind that is offered in state prisons. Studies have repeatedly proven that touch helps with creating social bonds, reducing stress, and increasing trust.
Placing a camera and screens between inmate and visitor eliminates some of the advantages of a visit. “They’re probably less than 500 feet away from you and you feel like they’re still in another state,” said Fisk. Just like with a Skype or FaceTime connection, you can’t maintain eye contact on a video call, because you spend most of your time looking at the screen, not at the camera. “You can never look someone in the eye. It’s impossible.”
Some prior related posts:
- NY Times debates "Visiting Prisoners, Without Visiting Prison"
- New report examines value of video visitation for kids of incarcerated
- "Louisiana prisons expand inmate medical care through video conferencing"
- Prison videoconference visitation program expanding in New York
- Might all video visitation companies be eager to have prisons and jail prohibit in-person visitation?
- "The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"
SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform
Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado. That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."
I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.
Prior related posts:
- Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
- Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?
Cross-posted at Marijuana Law, Policy and Reform
Fairer capital fight has Virginia prosecutors fighting for the death penalty less
As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:
A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.
Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.
Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.
Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.
"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."
It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.
A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."
Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.
UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.
Sunday, May 03, 2015
“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”
The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across. Here is an excerpt from the end of the piece's introduction:
In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.
Section II of this Article provides a brief foundational history of mandated reporting laws in the United States. Section III outlines the increased involvement of the federal government in promoting mandated reporting laws. Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries. Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law. Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas.
May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Saturday, May 02, 2015
Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence
If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you. Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."
This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:
Whether Webster is “retarded” was the principal issue at his trial and sentencing. He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment. The sentencing hearing spanned 29 days, with abundant evidence. The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation. If Webster is retarded, he is ineligible for the death penalty. Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals. What Webster now wants is still another opportunity to litigate that question. The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges. Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.
Friday, May 01, 2015
"Baltimore prosecutor charges police with murder, manslaughter in death of Freddie Gray"
The title of this post is the current headline of this notable breaking FoxNews report. Here are the basics:
Prosecutors charged six Baltimore police officers Friday with crimes ranging from murder to assault in the death of Freddie Gray, the 25-year-old black man whose death last month of injuries apparently suffered in police custody touched off peaceful protests that degenerated into a night of rioting, looting and chaos Monday.
State's Attorney Marilyn Mosby, speaking at a Friday news conference, blasted the six police involved in Gray's arrest on April 12, during which he suffered a broken neck that proved fatal a week later. Mosby said the police had no basis for arresting Gray, who police said avoided eye contact and was carrying a switchblade. One police officer, identified as Caesar Goodson, 45, was charged with second-degree murder, while others were charged with crimes including manslaughter and assault.
"No one is above the law," declared Mosby, who said she comes from three generations of law enforcement and has been on the job for four months.
Recent related posts:
- Inspiring remarks from the new Attorney General in DC ... while Baltimore burns to the north
- David Simon connects Baltimore's woes to the drug war
Judicial second-thoughts leads to greatly reduced prison sentences for cheating Atlanta school administrators
As reported here a few weeks ago, the judge presiding over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests ordered three of the defendants to serve seven years in state prison. But, as this CNN article reports, now that same judge has reduced their sentences to three years in prison. Here is why:
"I'm not comfortable with it," Fulton County Superior Court Judge Jerry Baxter said of the sentences he handed down to the three defendants April 14. "When a judge goes home and he keeps thinking over and over that something's wrong, something is usually wrong."
Tamara Cotman, Sharon Davis-Williams and Michael Pitts also were ordered Thursday to serve seven years on probation, pay $10,000 fines and work 2,000 hours in community service.
Baxter had come under fire from some community leaders for giving prison sentences to eight teachers and administrators who stood trial and were convicted of racketeering. They'd been accused of taking part in an effort to raise tests scores at struggling schools by erasing wrong answers and putting in correct answers.
Outside of court, Benjamin Davis, the lawyer for Cotman, questioned the judge's rationale in handing down heavy sentences a few weeks ago. "I had never seen a judge conduct himself in that way," he said. "What was going on with Judge Baxter?"
Davis-Williams said she was pleased judge Baxter changed his mind. Her attorney, Teresa Mann, added, "We are happy. We are elated that judge Baxter took the opportunity to reflect." Cotman, Davis-Williams and Pitts, all school reform team executive directors, got the harshest sentences during an April 14 hearing: Seven years in prison, 13 years of probation and $25,000 fines.
Baxter said of his change of mind: "I'm going to put myself out to pasture in the not-too-distant future and I want to be out in the pasture without any regrets."
During the earlier sentencing hearing, Baxter was frustrated when defendants didn't admit their guilt. "Everybody knew cheating was going on and your client promoted it," Baxter said to an attorney representing Davis-Williams. At one point he said, "These stories are incredible. These kids can't read."
At a press conference held April 17, most of the convicted educators insisted they were innocent. "I didn't cheat. I'm not a racketeer," said Diane Buckner-Webb, a former elementary teacher.
All defendants sentenced to prison have appealed and are out on bond. The lower prison sentences given to other defendants -- ranging from one to two years -- have not been reduced....
Of 35 Atlanta educators indicted in 2013, more than 20 took a plea deal. Twelve educators went on trial six months ago, with 11 convicted and one acquitted on April 1. Of the 11 convicted, two took a deal in which they admitted guilt, waived their right to appeal and received much lighter sentences. One defendant was giving birth during the sentencing phase not been sentenced.
On Thursday, Baxter urged the defendants to engage in community service while they're appealing. He said that might lighten the punishment if the convictions are upheld. The judge said he was tired of dealing with the Atlanta Public Schools cheating scandal, which he referred to as "this mess."
"I'm ready to move on. So, anyway, adios," Baxter said, and ended the hearing.
Notably, under federal law, a judge is not legally permitted to change a sentence based only on subsequent second thoughts about the appropriateness of the sentence. I have long understood (though not always thought wise) that a federal judge gets only one bite at the sentencing apple, and I would love to hear from commentors whether they this is it just and appropriate to let sentencing judges adjust sentences in the way and for the reasons done in this state case.
Prior related post:
"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"
The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years. Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive:
On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....
In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.
Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....
But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.
Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...
Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....
The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.
In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.
Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.
Thursday, April 30, 2015
New proposal for National Criminal Justice Commission garnering notable support
This official press release from the office of Senator Lindsay Graham highlights a notable new federal bill to create a notable new federal commission with a notable mission that already has some notable supports. Here are excerpts from the press release:
U.S. Senator Lindsey Graham (R-South Carolina) has cosponsored the National Criminal Justice Commission Act of 2015, bipartisan legislation that would create a National Criminal Justice Commission to review the criminal justice system from top to bottom and propose reforms to address serious issues facing our nation's criminal justice system.
The legislation would establish a 14-member, bipartisan National Criminal Justice Commission charged with completing an 18-month, comprehensive review of the national criminal justice system, including federal, state, local, and tribal criminal justice systems, and with issuing recommendations for changes in oversight, policies, practices and laws to reduce crime, increase public safety, and promote confidence in the criminal justice system. The Commission would be made up of Presidential and Congressional appointees, including experts on law enforcement, criminal justice, victims' rights, civil liberties, and social services.
"This is a long overdue measure," said Graham, Chairman of the Judiciary Committee's Crime and Terrorism Subcommittee. "The men and women representing law enforcement understand the need for this legislation, and I appreciate them pushing Congress to move forward on this important issue. I think the nation will be better off with this essential top-to-bottom review of the most pressing issues facing our nation's criminal justice system."...
The National Criminal Justice Commission Act of 2015 is supported by a broad coalition of criminal justice organizations, including law enforcement, crime victims, and criminal justice reform advocates.
Endorsements for the National Criminal Justice Commission Act of 2015 include:
Jonathan F. Thompson, Executive Director and CEO of the National Sheriffs' Association said: "The National Sheriffs' Association applauds Senators Peters, Graham and Cornyn for introducing this bill to establish a National Criminal Justice Commission. We believe it is in the best interest of the nation to have a transparent system going forward."...
Association of Prosecuting Attorneys President and CEO David LaBahn said:
"The Association of Prosecuting Attorneys - the only national prosecutors association to represent and support prosecutors and their deputies at the local, county, state and federal level - strongly supports the introduction of the National Criminal Justice Commission Act. It has been 50 years since there was a holistic review of the national criminal system and this effort is long overdue. We applaud Senators Peters, Graham and Cornyn for the introduction of this crucial legislation."
Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank
A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here). This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:
The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).
The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.
The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand. The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.
In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.