Saturday, March 01, 2014

Notable new federal front in drug war being tried in South Carolina

I was intrigued to see this lengthy article at the Huffington Post headlined "Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison." The piece merits a read in full, and here is a taste:

Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours. "I want to be able to stand on my porch," Davis said. "I have a beautiful garden."

"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.

To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.

"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."

"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."

Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.

While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.

The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.

The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.

For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant....

"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee." Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.

March 1, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments"

The title of this post is the title of this notable new paper by Charles MacLean and Akram Faizer now available via SSRN.  Both the title and the contents struck me as especially timely with the Supreme Court finally set to hear arguments on Monday about how states can (and cannot) implement its 2002 Eighth Amendment ruling in Atkins. Here is the abstract:

Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment.  Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters.  Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.

March 1, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, February 27, 2014

Federal judge rejects as too lenient plea deal for Illinois state judge guilty of drug and gun charges

This local sentencing story from Illinois is notable both for its participants and as a rare example of a federal judge rejecting a plea deal in a drug case for calling for a sentence deemed too low.  The article is headlined "Judge rejects plea deal for former St. Clair County judge in drug case," and here are just some of the interesting particulars:

A federal judge refused Wednesday to accept terms of a plea agreement that would have sent former St. Clair County judge Michael N. Cook to prison for 18 months on drug-related charges.  U.S. District Judge Joe Billy McDade called the sentence “not sufficient” and said the facts of the case supported a longer sentence.  But McDade also said that he would not “throw the book at him” just because Cook was a judge.  He did not suggest what an appropriate sentence would be.

McDade gave Cook and prosecutors until March 19 to try to strike a new deal.  On March 28, Cook is again scheduled to be in court — either to be sentenced on a new agreement or have a date set for trial....

Cook’s plea deal Nov. 8 to a misdemeanor charge of heroin possession and a felony charge of being a drug user in possession of a firearm was made under an unusual provision.  It carried an agreed-upon penalty that took the sentencing discretion away from McDade.  His only option was to accept or reject the deal.  In January, McDade filed an order warning both sides that he disagreed with a pre-sentence report that said there were no reasons to go above sentencing guidelines, which called for six months or less behind bars.

McDade wrote that Cook’s status as a judge, his longtime drug use and the disruption of governmental functions were reasons to go higher.  He also ordered a supplemental report on how Cook’s actions may have affected cases in front of him, and whether it had affected public confidence in the judicial system.

Cook resigned after exposure of a drug scandal that cost the life of Associate Judge Joseph Christ, who died of a cocaine overdose March 10 in the Cook family hunting lodge in Pike County, Ill., about 65 miles northwest of St. Louis.  The scandal also ensnared former probation worker James K. Fogarty and others.  Cook, of Belleville, admitted at his guilty plea that he was a heroin addict.  After his arrest in May outside of the house of his heroin dealer, Sean McGilvery, he entered an intensive in-patient treatment facility.

But authorities were investigating rumors of Cook’s drug use long before Christ’s death. Search warrant affidavits released since the guilty pleas accuse Cook of abusing a variety of illegal and prescription drugs.  One confidential informer claimed in 2012 that Cook had used drugs for a decade.  The affidavits also show frequent and familiar contact between McGilvery and both Cook and Christ....

Cook and McGilvery were arrested May 22.  Fogarty was charged May 24.  McGilvery is serving a 10-year prison term on charges of conspiracy to distribute, and possession with intent to distribute, more than a kilogram of heroin.  Fogarty is scheduled to be sentenced Thursday and faces a five-year term on charges of intent to distribute cocaine and being a drug user in possession of a firearm. He admitted selling drugs to both Cook and Christ.  His sentence could be affected if he can be explicitly linked to Christ’s death.

Cook is the son of Bruce Cook, of Belleville, a well-known personal injury lawyer and major behind-the-scenes player in local and national Democratic Party politics.  Cook was an assistant public defender and former member of his father’s practice.  He was selected as an associate judge in 2007, appointed to a vacancy to be a circuit judge in 2010 and elected to a six-year term, as a Democrat, later that year.

Two men convicted in front of Cook of murder have won retrials after raising concerns about the judge’s drug connections, and some other criminal defendants who appeared before him have been allowed to withdraw guilty pleas.

February 27, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Tuesday, February 25, 2014

Thanks to Gov. Brown, Plata, budget woes, state court rulings and/or _____, California lifers now have a real chance for parole

MadlibsThe weird "Mad-Libs" title to this post is my reaction and query in response to this notable new AP report headlined "California 'lifers' leaving prison at record pace."  Here are the details:

Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out. Gov. Jerry Brown has granted parole to a record number of inmates with life sentences since he took office in January 2011, going along with parole board decisions about 82 percent of the time.

Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.

This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.

Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers.  "This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance.  "This is a change of philosophy that can be dangerous."

The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.

Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years -- almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles.  Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population.

But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions.  The court ordered prison officials to consider more than the severity of the applicant's underlying crimes.  It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.

State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012.  In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.

Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board. Brown has allowed 82 percent of the 1,590 paroles granted by the board.

Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release....

Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years.  Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release....

The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder.  Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s.  Experts say older ex-cons are less prone to commit new crimes than younger ones.

Brown has reversed the parole board.  On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration.  One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime.  "Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."

Ernest Morgan on the other hand, is a lifer Brown did let free. Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.... "So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."

In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official. "It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."

February 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure

The Supreme Court handed down an opinion this morning in Kaley v. US, No. 12-464 (S. Ct. Feb 25, 2014) (available here), which is notable for its holding and the groups of Justices joining together.  Here is the start of the opinion for the Court, which was authored by Justice Kagan and joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction.  In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.”  And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure's legality under Monsanto.  The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged.  We hold they have no right to relitigate that finding.

Here is the start of the lengthy dissent in Kaley  which was authored by Chief Justice Roberts and joined by Justices Breyer and Sotomayor:

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer.  That ruling is not at issue.  But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets.  I cannot subscribe to that holding and respectfully dissent.

The Court also handed another criminal defendant another 6-3 loss today in a Fourth Amendment case from California. Here is how the majority opinion, per Justice Alito, gets started in Fernandez v. California, No. 12-7822 (S. Ct. Feb. 25, 2014) (available here):

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants1 consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

February 25, 2014 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, February 24, 2014

Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant

Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:

In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.  Id., at 687–688, 694.  Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance.  We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688.  Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....

The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”  An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690.  We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.  The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.

Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.

February 24, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (42) | TrackBack

You be the federal sentencing judge: "tough call" in sentencing former police chief

The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'."  Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:

When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...

At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.

Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.

Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."

Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.

Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."

In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."

Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.

The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....

Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.

The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.

With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "

Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."

UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."

February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

NACDL brings FOIA lawsuit against DOJ for access to criminal discovery guide

The alphabet suit title for this post concerning this story reported here by Legal Times under the headline "Criminal Defense Group Sues DOJ Over 'Discovery Blue Book'." Here are the details:

The National Association of Criminal Defense Lawyers [Friday] sued the U.S. Department of Justice over public access to a criminal discovery "blue book" that was written after the collapse of the case against Ted Stevens.

The Justice Department last year turned down a request from the NACDL for a copy of the Federal Criminal Discovery Blue Book.  The lawsuit was filed ... in U.S. District Court for the District of Columbia.

Justice Department officials, according to the complaint, cited the book as an example of why federal legislation was unnecessary to prevent future discovery abuses among prosecutors.  During a hearing on Capitol Hill, in 2012, the Justice Department said the blue book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal," according to the NACDL complaint.

"The due process rights of the American people, and how powerful federal prosecutors have been instructed as relates to the safeguarding of those rights, is a matter of utmost Constitutional concern to the public," NACDL President Jerry Cox said in a written statement.  "The 'trust us' approach is simply unacceptable.  And it is certainly an insufficient basis upon which to resist bipartisan congressional interest in codifying prosecutors’ duty to disclose."

February 23, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, February 21, 2014

SCOTUS permits additional briefing on CP restitution issues in light of Burrage

The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences.  Here is the text of the order:

The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted.  The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.

Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:

The Court, it appears, did not stir up this new issue on its own.  The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case.  The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.

Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....

In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.”  The letter offered to submit a brief on the point.

In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively.  In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.

The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Is an executed murderer now haunting Missouri's efforts to carry out death sentences?

SmallsThe somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic.  Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

February 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, February 20, 2014

"The Unbearable Lightness of Criminal Procedure"

The title of this post is the title of this interesting paper by Ion Meyn available via SSRN. Here is the abstract:

What is revealed about criminal procedure if we compare it to civil procedure?  Prevailing scholarship compares American criminal procedure to criminal procedure in Europe.  One of the most influential of these transatlantic comparisons is Gerard Lynch’s Our Administrative System of Criminal Justice.  Lynch arrives at the insight that the American criminal model of adjudication is not trial-based, but like the European model, administrative in nature. He further concludes that both models strike an adequate balance between the competing goals of efficiency and accuracy.  A comparison of American criminal procedure to its common law counterpart, civil procedure, confirms Lynch’s view that criminal the criminal process is administrative in nature.  But the comparison also leads one to question Lynch’s assessment that the American criminal model adequately achieves efficiency and accuracy.

Though historically similar, the criminal and civil pretrial process has evolved into two distinct models of administrative adjudication.  This article contends that civil procedure reforms identified due process features otherwise locked in trial and modified them for pretrial use.  These features of trial include the opportunity to compel and present facts, the application of the rules of evidence, and active judicial intervention to ensure fair play.  Though civil litigants do not typically proceed to trial, these reforms permit litigants to compel testimony and demand that legal claims have factual integrity.  But where reforms to civil procedure have imported due process into the pretrial process, criminal procedure has remained resistant to such innovation. Instead, during the criminal pretrial period, parties have unequal access to facts. Few rules ensure factual integrity.  And the court has little opportunity to review the pretrial record. As a result, separate and unequal procedural models govern the pretrial resolution of disputes within our courtrooms.

February 20, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, February 19, 2014

After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage

As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday."  Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:

Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn.  All three are members of the Plowshares movement of Christian pacifists.

U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest.  The judge sentenced Walli and Boertje-Obed both to five years and two months in prison.  Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property.  In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.

During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."

Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals.  He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."

The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II.  The three cut through fences and made it through multiple layers of security.  They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....

The three have garnered worldwide attention.  Thousands of letters of support have poured into the court from around the world.  Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.

Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.

The government has taken the case seriously.  The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.  

A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment....  During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said.  But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines.  He called a recommended sentence of 6½ years for Rice "overkill."

Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex."  [And] "they have shown no remorse for their criminal conduct," he said.

Recent related posts:

February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

NY Times debates "Sentencing and the 'Affluenza' Factor"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the import and impact on sentencing of an offender's background.  Here is the section's set up:

This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence.  A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations.  To what extent should life circumstances affect sentencing?

Here are the contributions, with links via the commentary titles:

February 19, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

"Will There Be a Neurolaw Revolution?"

The question in the title of this post is the title of this new paper by Adam Kolber now available via SSRN. Here is the abstract:

The central debate in the field of neurolaw has focused on two claims.  Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions.  Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law.  I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.

There will, however, be a neurolaw revolution of a different sort.  It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries.  Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy.  Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.

February 19, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 17, 2014

Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility

Sister Megan RiceThis new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning.  Here are excerpts:

An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.

Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.

All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.

In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.

“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.

Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.

The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.

Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”.  At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws.  The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.

At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.

Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons.  But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:

Recent related post:

February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Disqualifying Defense Counsel: The Curse of the Sixth Amendment"

The title of this post is the title of this intriguing new paper available via SSRN authored by Keith Swisher. Here is the abstract:

Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify.

This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to other litigants, criminal defendants generally have weaker, not stronger, rights to ethical representation; and (2) that disqualification law in criminal practice generally weakens, not strengthens, defendants’ representation.

February 17, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, February 14, 2014

"The Marriage of State Law and Individual Rights and a New Limit on the Federal Death Penalty"

The title of this post is the title of this notable new article by Jonathan Ross now available on SSRN. This piece seems especially timely not only in light of lower federal courts extending recent SCOTUS marriage precedents, but also with the Boston Bomber federal capital case taking place in a state without the death penalty. Here is the abstract:

Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. This phenomenon has troubled federalism proponents, who have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's decision to abolish capital punishment. Drawing on these scholars' works, defendants have argued that state law shields them from federal punishment. Courts have almost unanimously rejected such arguments, holding that state law cannot preclude the administration of federal punishment for federal offenses.

This article proposes a novel basis for a challenge to the federal death penalty's use in a non-death penalty state - the Supreme Court's reasoning in United States v. Windsor. In Windsor, the Court held that federal interference with a state law right arising in an area traditionally regulated by states is subject to heightened scrutiny under the Due Process Clause. This article argues that, in some instances, Windsor precludes federal capital prosecutions.

This article considers a Windsor-based motion to dismiss a notice of intent to seek the federal death penalty. The federal capital prosecution in a non-death penalty state interferes with a state law right to not be executed. As states have traditionally prosecuted violent murders, this right arises in an area traditionally regulated by states. Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest. If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.

February 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, February 13, 2014

Trio of former governors to get behind initiative to reform California's dysfunctional death penalty

As reported in this Los Angeles Times article, "three former California governors are set to announce their endorsement Thursday of a proposed initiative sponsors say would end lengthy death penalty appeals and speed up executions." Here is more:

Former governors George Deukmejian, Pete Wilson and Gray Davis will announce at a news conference the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the November ballot.

The measure, if qualified, would ignite the second statewide debate on the death penalty in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48% of voters in favor and 52% against.

The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population. It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures, and exempt the execution protocols from a state administrative law that requires extensive public review.

California now has more than 700 people on death row, and the last inmate was executed in 2006. The state currently has no court-approved method of lethally injecting the condemned, and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers willing to handle capital appeals, which can take decades to be resolved in state and federal courts.

I am hoping this capital reform initiative makes the California ballot given that a majority of Californians have voted to retain the death penalty in the state. I have to believe that California voters do not want to preserve the distinctly dysfunction death penalty system it now has, and this initiative would appear to be the most efficient and effective means to make the state's system more functional.

If this capital reform initiative makes the California ballot, it will also be interesting to see how California's current governor and attorney general will chime in on the issue. My sense is that Gov Brown and AG Harris are generally opposed to an active capital punishment system, and thus they may be disinclined to support the initiative. But it should be hard for them to explain to voters why the support a dysfunction capital punishment system over a functional one.

February 13, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, February 12, 2014

Effective Heritage analysis of federal MMs and statutory reform proposals

Earlier this week, the Heritage Foundation published this effective and informative Legal Memorandum titled "Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms." I plan to have the students in my Sentencing class read this memo, which was authored by Evan Bernick and Paul Larkin, because it provides a very timely review of the arguments surrounding the leading modern reform proposals. And here are the "key points" highlighted by the authors in conjunction with the memo:

The U.S. Senate is considering two bills that would revise the federal sentencing laws in the case of mandatory minimum sentences.

The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.

The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.

Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.

February 12, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack