Thursday, September 04, 2014

Oklahoma releases extensive report concerning problems with Lockett execution

As reported in this lengthy Tulsa World article, headlined "IV errors, lack of training cited in Oklahoma botched execution report," the Oklahoma Department of Public Safety released today this lengthy official report concerning the seemingly ugly execution of Clayton Lockett by the state back in April. Here is a rough summary of the report's findings via the news report:

Despite some problems, the execution drugs did what they were supposed to do, the Department of Public Safety said Thursday morning at a news conference on a report into Clayton Lockett's execution....

Lockett died April 29 at the Oklahoma State Penitentiary 43 minutes after his execution began. Witnesses watched as he writhed, strained and mumbled on the gurney inside the execution chamber....

The stress of two planned executions in one day, a lack of proper equipment and no backup plan hampered Clayton Lockett's execution, according to the DPS report released earlier today.  The report also found that the Department of Corrections lacked a longer needle and other equipment that medical professionals requested to insert the IV.  It also states that officials took no steps to revive Lockett after his execution went awry and the blinds were closed....

Gov. Mary Fallin’s staff began preparing a stay of execution for Lockett, but he died before it could be issued, the report states. “There was conversation inside the chamber about administering life-saving measures to Lockett, including transporting him to the emergency room, but no order was given,” the report states.

A paramedic who assisted in the execution also said he felt “stressed” because two executions had been scheduled on the same day.  “It was apparent the stress level at OSP was raised because two executions had been scheduled on the same day,” the report states....

The report makes 10 recommendations for changes in the state’s execution process, including more training requirements and better communication between executioners and officials in the death chamber.  “The current processes, including the use of color pencils and hand signals, could be used as a contingency if other modern methods fail,” the report states.

Executions should also not be scheduled within seven days of each other due to manpower limitations, the report recommends.  DPS investigators interviewed more than 100 witnesses as part of the investigation, including a Tulsa World reporter who witnessed the execution....

The report states that problems with Lockett’s IV were the main reason the lethal drugs were not properly delivered into his bloodstream.  “This investigation concluded the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs,” the report concludes.

An autopsy cites evidence on Lockett’s body that the execution team had difficulty starting his IV, taking about 45 minutes.  It notes at least 14 needle marks and incisions showing multiple attempts to start an IV in his elbows, groin, neck, jugular and foot.

Needles requested by the physician were not available at the prison, the report states. “The physician requested a longer needle/catheter for the femoral access … but none were readily available.  The physician also asked for an intraosseous infusion needle, but was told the prison did not have those either,” the report states....

The execution was the first in Oklahoma to use midazolam, a sedative that has been linked to several botched executions in other states.  Officials resorted to the drug after running out of pentobarbital, which had been used in previous executions.  “This investigation could not make a determination as to the effectiveness of the drugs at the specified concentration and volume,” the report states.  “They were independently tested and found to be the appropriate potency as prescribed.  The IV failure complicated the ability to determine the effectiveness of the drugs.”...

Despite DOC claims that Lockett had “purposefully dehydrated himself,” an autopsy by the Dallas County Medical Examiner’s Office did not find that Lockett was dehydrated, the report notes.

The paramedic assisting with the execution had participated in nearly every Oklahoma execution, the report states.  It does not explain why DOC documents repeatedly referred to the person as a phlebotomist, an occupation not required to be licensed in Oklahoma.

The physician overseeing the execution had only participated in one execution before Lockett’s, the report states. “This was his second execution with the first being four to five years earlier. The physician understood his duties were to assess Lockett to determine if he was unconscious and ultimately to pronounce his death,” the report states. “He was contacted two days prior to the execution date and asked to fill in for another physician that had a scheduling conflict.”...

Anita Trammell, warden at the Oklahoma State Penitentiary, and Patton told investigators that DOC employees received “inadequate” training before the execution. “Warden Trammell stated the only training she received was on-the-job training and that DOC had no formalized training procedures or processes concerning the duties of each specific position’s responsibility,” the report states.

“The warden and director both indicated DOC had no training protocols or contingency plans on how to proceed with an execution if complications occur during the process.” The report states that DOC lacks training requirements for medical professionals and executioners taking part in executions.  “It was noted there was no formal training process involving the paramedic, the physician or the executioners and their specific roles. They were not involved in any pre-execution training or exercises to ensure they understood the overall process,” it states.

Notably, as the Tulsa World article highlights, this report and its recomendations could surely have some impact on Oklahoma's significant upcoming execution plans:

The state plans to review its protocols before the three executions it has scheduled. The execution of a second inmate, Warner, scheduled to be executed two hours after Lockett was stayed until Nov. 13.

Two additional executions have been scheduled after Warner’s execution.  State officials have not said whether they will have enough time to implement any recommended changes in protocol in time for the next scheduled execution.

Legal challenges to the state’s process could also delay upcoming executions. Claiming the state is experimenting on “captive and unwilling human subjects,” 21 Oklahoma death-row prisoners filed a federal lawsuit in June challenging the state’s execution protocols.

September 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, September 03, 2014

Third Circuit panel splits over whether placing child porn in shared folder constitutes distribution

A Third Circuit panel today split on an interesting question of computer crime law involving child pornography.  Here is how the majority opinion in US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) gets started:

David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography.  At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available.  The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography.  We conclude it does not.  A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.  Accordingly, we vacate Husmann’s conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.

And here is how the dissenting opinion, per Judge Van Antwerpen, gets going:

I cannot join my colleagues in the narrow definition of “distribution” they would apply to child pornography cases.  George Husmann was convicted by a jury of three counts of distributing child pornography pursuant to 18 U.S.C. § 2252(a)(2).  Husmann placed images of child pornography into a shared folder accessible to all global users of the peer-to-peer (“P2P”) file sharing program 360 Share Pro.  Once in the shared folder, a search term and a click of a mouse allowed access to these images by any user on the system.  My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.” This is certainly not what Congress had in mind and following the majority’s approach, the crime of distribution would not be complete until a police officer downloaded the image.  This is a distinction without merit.  Given the plain meaning of the term, the intent of Congress, the advancement of technology, as well as a series of recent sentencing cases, the placing of child pornography into a shared file accessible over a peer-to-peer file sharing network, alone should constitute “distribution.”  Husmann took all the necessary steps to make a product available to the public in a publically accessible location, and whether or not a party took that product is irrelevant to both the purpose of § 2252 and to his role as distributor.  For that reason, the conviction of Appellant George Husmann for “distribution” under 18 U.S.C. § 2252 should be upheld.

September 3, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

New report that Missouri is using controversial execution drug despite claims to the contrary

A helpful readers altered me to this notable new NPR affilate story headlined "Missouri Swore It Wouldn’t Use A Controversial Execution Drug. It Did."  Here is how the lengthy piece gets started:

In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In Oklahoma, it took 43 minutes until a conscious inmate died of what the state said was a heart attack. In Arizona, it took nearly two hours, with the inmate "gulping like a fish on land."

The three worst botched executions this year had at least one thing in common: The states all used a drug called Midazolam to sedate the inmate, with varying levels of success.

Botched executions in other states led to questions in Missouri, a state as secretive as the others. Top Missouri officials were asked about the state's methods. They defended their own protocol each time, pointing out that Missouri doesn’t use the same drugs as those other states.

But an investigation by St. Louis Public Radio shows that wasn't entirely true. According to documents we obtained, Missouri has used Midazolam in every execution since November of last year. In all nine executions since then, Missouri's execution team has injected the condemned with significant amounts of the sedative.

This is occurring in spite of the fact that Missouri's top corrections officials testified Midazolam would never be used in a Missouri execution.

September 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 02, 2014

"Rethink sentencing and parole to solve aging, costly prison population"

The title of this post is the headline of this new editorial from a local South Carolina paper.  Yet, even though focused on some Palmetto State particulars, many of the points and themes in the editorial have broad applicability in many US jurisdictions.  Here are excerpts:

The term "life in prison" is easy enough to understand when it is handed down as a sentence in a courtroom.  But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.

For many, the sentences are a just and fair punishment.  Often, they are also necessary to keep the public safe.  But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws.

Regardless, any prisoner costs the state and its taxpayers a lot of money.  Prisons should serve to deter would-be criminals and separate society from its most dangerous members. Problems — and extra costs — arise when they must also serve as mental health facilities and nursing homes.

According to a recent report by The State newspaper, the number of South Carolina inmates over the age of 55 has more than doubled over the last 10 years. And that number is expected to increase without reforms to the way the state handles its sentencing and parole laws.

Many aging prisoners were sentenced long before a 2010 legislative reform reduced sentences for some non-violent crimes while strengthening punishments for violent offenders. That bill was so effective that it has reduced the prison population in the state by more than 10 percent overall and slashed the number of incarcerated non-violent offenders in the years since its passage.

South Carolina has also implemented programs, including a "smart probation" system, that have helped cut the rate of recidivism dramatically, as The Post and Courier reported on Sunday.   Even so, the state's cost per inmate continues to rise, and part of that increase is due to the expense of caring for aging prisoners with additional medical needs and accompanying logistical concerns....

The South Carolina Sentencing Reform Commission prepares an annual review of the state corrections system with a particular focus on the impact of the 2010 legislation.  That data show that sentencing reform has, by and large, been a success story. But more work remains.  South Carolina should continue its reform of sentencing laws while focusing on rehabilitation for offenders who pose a minimal threat if given probation rather than prison.

The Legislature should also consider expanding parole options for aging inmates who have served substantial portions of their sentences, have serious chronic medical conditions or are unlikely to pose a threat should they be released under supervision.  Every prisoner who can safely be released on parole represents thousands of dollars of savings for taxpayers....

Any decision must consider both what is cost effective and acceptable for public safety. If some older prisoners who have effectively paid their debt to society can be allowed to re-enter society safely and at a savings to taxpayers, then there is little reason to keep them locked away.

September 2, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Saturday, August 30, 2014

"The criminalisation of American business"

20140830_cna400The title of this post is the headline of this notable new Economist cover story, which carries the subheadline "Companies must be punished when they do wrong, but the legal system has become an extortion racket." Here are excerpts:

Who runs the world’s most lucrative shakedown operation? The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.

The amounts are mind-boggling. So far this year, Bank of America, JPMorgan Chase, Citigroup, Goldman Sachs and other banks have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds. BNP Paribas is paying $9 billion over breaches of American sanctions against Sudan and Iran. Credit Suisse, UBS, Barclays and others have settled for billions more, over various accusations. And that is just the financial institutions. Add BP’s $13 billion in settlements since the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in some cars, and many more.

In many cases, the companies deserved some form of punishment: BNP Paribas disgustingly abetted genocide, American banks fleeced customers with toxic investments and BP despoiled the Gulf of Mexico. But justice should not be based on extortion behind closed doors. The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism (see [companion] article)....

The drawbacks of America’s civil tort system are well known. What is new is the way that regulators and prosecutors are in effect conducting closed-door trials. For all the talk of public-spiritedness, the agencies that pocket the fines have become profit centres: Rhode Island’s bureaucrats have been on a spending spree courtesy of a $500m payout by Google, while New York’s governor and attorney-general have squabbled over a $613m settlement from JPMorgan. And their power far exceeds that of trial lawyers. Not only are regulators in effect judge and jury as well as plaintiff in the cases they bring; they can also use the threat of the criminal law.

Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.

Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs. Nor is it clear how the regulatory booty is being carved up. Andrew Cuomo, the governor of New York, who is up for re-election, reportedly intervened to increase the state coffers’ share of BNP’s settlement by $1 billion, threatening to wield his powers to withdraw the French bank’s licence to operate on Wall Street. Why a state government should get any share at all of a French firm’s fine for defying the federal government’s foreign policy is not clear....

In the longer term, two changes are needed to the legal system. The first is a much clearer division between the civil and criminal law when it comes to companies. Most cases of corporate malfeasance are to do with money and belong in civil courts. If in the course of those cases it emerges that individual managers have broken the criminal law, they can be charged.

The second is a severe pruning of the legal system. When America was founded, there were only three specified federal crimes — treason, counterfeiting and piracy. Now there are too many to count. In the most recent estimate, in the early 1990s, a law professor reckoned there were perhaps 300,000 regulatory statutes carrying criminal penalties—a number that can only have grown since then. For financial firms especially, there are now so many laws, and they are so complex (witness the thousands of pages of new rules resulting from the Dodd-Frank reforms), that enforcing them is becoming discretionary.

This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective — and potentially corrupt — system of justice in which everybody is guilty of something and punishment is determined by political deals. America can hardly tut-tut at the way China’s justice system applies the law to companies in such an arbitrary manner when at times it seems almost as bad itself.

August 30, 2014 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (9) | TrackBack

Friday, August 29, 2014

New Hampshire Supreme Court rules Miller is substantive and retroactive to prior JLWOP cases

Today the New Hampshire Supreme Court in In re Petition of State of New Hampshire, No. 2013-0566 (N.H. Aug. 29, 2014) (available here), declared that the Supreme Court's Eighth Amendment ruling in Miller v. Alabama should be applied retroactively. Here is how the court's ruling begins and ends:

In this Rule 11 petition, see Sup. Ct. R. 11, the State appeals the determination of the Superior Court (Smukler, J.) that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the imposition of mandatory life-without-the-possibility-of-parole sentences on juvenile offenders under the age of eighteen at the time of their crimes, applies retroactively to the respondents (petitioners in the trial court), Robert Dingman, Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review.  We affirm....

We conclude that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review.  Consequently, we find that the respondents are entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.  In light of our decision, we decline to address the respondents’ argument that we should “apply a broader retroactivity doctrine than the federal courts apply.”

August 29, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Based on additional 3553(a) justifications, Eighth Circuit affirms "profound downward variance to a sentence of probation" in multi-million dollar fraud

Especially in the years right after after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient.  But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government's appeal.

The Cole decision from the Eighth Circuit is relatively short, and it is today's must-read for any and all white-collar practitioners.   Here are snippets that help highlight why:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....

In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.

On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).

The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....

While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation.  This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a case in which the defendant did not plead guilty or provide substantial assistance to the government and involved "one of the largest corporate frauds in Minnesota history and was also a significant tax fraud."

Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court. 

August 29, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters

Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute.  The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case.  Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:

A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith).  A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.

At stake in this appeal is whether their hate-crime convictions may stand.  No one questions that the assaults occurred, and only a few defendants question their participation in them.  The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A).  In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults).  Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial.  Burrage v. United States, 134 S. Ct. 881, 887–89 (2014).  Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.

Here is how the dissent, per Judge Sargus sitting by designation, gets started:

This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249.  While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent.  In my view, the majority has adopted an unduly restrictive interpretation of the statute.

Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014).  The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other.  I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless.  This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.

Related prior posts:

August 27, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

"Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team"

The title of this post is the title of this intriguing and timely new article by Jonathan Abel. Here are excerpts:

The Supreme Court’s pronouncements in Brady v. Maryland and its progeny place a constitutional obligation on prosecutors to disclose any evidence that would be favorable and material to the defense. But in some jurisdictions, even well-intentioned prosecutors cannot carry out this obligation with respect to one critical source of impeachment material: police personnel files. Such files contain invaluable material from internal affairs investigations and disciplinary re-ports—information that can destroy an officer’s credibility and make the difference between a defendant’s acquittal and conviction. But, while some jurisdictions make these files freely accessible, others employ a welter of statutes and local policies to keep these files so confidential that not even the prosecutor can look inside them. And, even where prosecutors can access the files, police officers and unions have used litigation, legislation, and informal political pressure to prevent prosecutors from disclosing Brady information in these files. While suppression can cost defendants their lives, disclosure of this information can cost officers their livelihoods, as “Brady cops” may find themselves out of work and unemployable.

Using original interviews with prosecutors, police, and defense attorneys, as well as unpublished and published sources, this Article provides the first account of the wide state-to-state disparities in Brady’s application to police personnel files. The Article argues that the widespread suppression of material in these files results not simply from prosecutorial cheating, but from the state statutory and local institutional constraints that give society’s imprimatur to the withholding of Brady material. It further challenges the doctrinal assumption that prosecutors and police officers form a cohesive “prosecution team,” and that, in the words of the Supreme Court, “the prosecutor has the means to discharge the government’s Brady responsibility if he will” by putting in place “procedures and regulations” to bring forth any Brady material known to the police. Finally, the Article contends that the confidentiality these files currently receive is not only undeserved as a normative matter, but also incompatible with core tenets of the Brady doctrine.

August 27, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, August 26, 2014

Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver

A helpful reader alerted me to a significant ruling today by the Third Circuit in US v. Erwin, No. 13-3407 (3d Cir. Aug. 26, 2014) (available here). Here is how the opinion starts:  

This case presents the novel question of what remedy is available to the Government when a criminal defendant who knowingly and voluntarily executed a waiver of right to appeal — and received valuable promises from the Government in return — violates his plea agreement by filing an appeal. Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846.  His agreement included a waiver of right to appeal his sentence if it was within or below the advisory Sentencing Guidelines range that results from a total advisory United States Sentencing Guidelines (“U.S.S.G.”) offense level of 39.  The Government agreed not to bring further criminal charges against Erwin in connection with the conspiracy, and it also agreed to seek a downward departure under U.S.S.G. § 5K1.1.  The Government fulfilled its part of the bargain; Erwin, who challenges his within-Guidelines sentence on appeal, did not.

For the following reasons, we conclude that Erwin’s appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver.  We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement’s terms: that is, the Government will be excused from its obligation to move for a downward departure.  We will therefore vacate Erwin’s judgment of sentence and remand for de novo resentencing in accordance with this opinion.

Matthew Stiegler in this post at his CA3blog starts his coverage of this Erwin ruling with this astute observation:

The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal.  Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.

August 26, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Notable federal case impacted by SCOTUS Miller ruling nearly two decades after initial sentencing

This local story out of Kansas City, headlined "Judge orders new sentencing hearing for defendant in deaths of six KC firefighters," reports on a notable new legal development in an old case as a result of the Supreme Court's Eighth Amendment ruling in Miller v. Alabama.  Here are excerpts (with my emphasis added for reasons explained below):

A man serving a life sentence for his role in the 1988 explosion deaths of six Kansas City firefighters will get a new sentencing hearing, a federal judge has ruled.

U.S. District Judge Fernando Gaitan signed orders Monday setting aside the life sentence given to Bryan E. Sheppard in 1997.  Gaitan ordered probation officers to prepare a new sentencing report on Sheppard and told prosecutors and Sheppard’s lawyers to write sentencing memos to be submitted to him by Sept. 26.  After that, Gaitan will review the paperwork, confer with attorneys and set a date for Sheppard to be re-sentenced, according to federal court records.

Sheppard, who was 17 at the time of the explosion, asked for a new sentencing hearing because the U.S. Supreme Court ruled in 2012 that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”

In February, prosecutors agreed that Sheppard was covered by the Supreme Court ruling and deserved a chance to make his case for a reduced sentence before a federal judge.

Firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham died before dawn Nov. 29, 1988, while fighting a fire in a construction trailer parked near the site of a U.S. 71 widening project. The trailer contained 25,000 pounds of ammonium nitrate mixed with fuel oil. It erupted in a massive explosion that ignited a second explosives trailer. The two blasts were felt for miles.

A federal jury convicted five defendants nearly nine years later. All were sentenced to life in prison.

The passage I have highlighted is noteworthy because it reveals that federal prosecutors in this case (and I am pretty sure in others) agree that the Supreme Court's Miller ruling should be applied retroactively.  As regular readers know, the issue of Miller retroactivity has split state courts and it seems only a matter of time before the SCOTUS resolves the split.

August 26, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details: 

Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.

Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.

The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed.  The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes.  A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.

To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...

Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.

In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.

The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters.  "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.

In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual.  She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.

Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."

"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.

Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.

The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.

August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, August 25, 2014

"Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America"

Mass_incarceration_finalThanks to this new posting at The Crime Report, I see the exciting news that Jonathan Simon's new book about mass incarceration and California's dysfunctional role therein has been released by The New Press.  The book's title makes up the title of this post, and here is how the publisher describes the book on its website:

For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading — relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order.  In short, mass incarceration has proven to be a fiscal and penological disaster.

A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.”  Berkeley law professor Jonathan Simon — an internationally renowned critic of mass incarceration and the war on crime — argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence.  Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.

Exposing the priority of politics over rational penal policy — and debunking the premise that these policies are necessary for public safety — this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.

August 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

What's the likely Ninth Circuit timeline for deciding the fate of California's death penalty in Jones v. Chappell?

As first noted in this post a few days ago, California Attorney General Kamala Harris has officially noticed an appeal to the Ninth Circuit in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), the remarkable case in which U.S. District Judge Carney declared all of California's death penalty system unconstitutional.  Because the stakes are so high in California and for modern death penalty jurisprudence generally, I expect this Ninth Circuit capital appeal will get considerable attention in the weeks and months ahead and that lots of different death penalty advocates (both pro and con) will be filing amicus briefs with competing claims about the constitutionality of California's death penalty system.

As the question in the title of post highlights, though I am sure the Jones v. Chappell appeal will get garner lots of attention, I am not sure how quickly (or slowly) the Ninth Circuit will hear and decide this case.  As death penalty fans know, federal capital habeas appeals have a (well-earned) reputation for proceeding either (1) very slowly, in part because a death row defendant raises so many case-specific claims concerning errors in a state trial and sentencing, or (2) very quickly, in part because there is a looming serious state execution date and the state highlights that all reasonable claims of error have been considered and rejected before.  In Jones v. Chappell, however, at issue on appeal is just one basic system-wide constitutional concern which is being considered in a case in which no serious execution date is looming.  Consequently, there is little reason to expect this appeal to move especially slowly or especially quickly.

Notably, a bit of irony attends the question in the title of this post because the constitutional issue in Jones v. Chappell centers on lengthy delays in appellate review in California and the apparent arbitrariness of which cases get through reviews more quickly or slowly.  Arguably, the longer the Ninth Circuit appellate process takes in Jones v. Chappell, the stronger the capital defendant's claims become.  That  bit of irony aside, I am eager to hear from any infomed Ninth Circuit capital habeas practitioners or observers concerning what kind of timelines are likely in play now in Jones v. Chappell.  Is this case likely to be fully briefed before the end of this year?   Can/should we reasaonally expect oral argument to take place in the early part of 2015 and a ruling not long thereafter?

I ask these questions not only because I am genuinely wondering what kind of pacing we all should expect in this matter, but also because this case necessarily should impact any political plans that California death penalty supporters and opponents may have for the big looming 2016 election.  Supporters of a more efficient and effective California death penalty system are already on record expressing interest in a voter initiative to reform the state's capital appellate process, and steadfast opponents of the death penalty also seem likely to eye a 2016 capital repeal initiative.  Not just how, but also exactly when, the Ninth Circuit rules in Jones v. Chappell could greatly impact initiative planning and advocacy.

Recent related posts:

August 25, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, August 22, 2014

California Attorney General seeking appeal in Jones v. Chappell capital case

As reported in this Los Angeles Times piece, headlined "California AG Kamala Harris to appeal ruling against death penalty," the Ninth Circuit will now be called upon to consider the remarkable decision last month by U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts last month  here and here), and now I suspect the case is going to generate lots of thoughtful amicus briefs on both sides.

For a host of reasons, I am not very surprised and I am very pleased that California AG Harris has decided to appeals the important and consequential ruling in Jones v. Chappell.  The facts stressed and conclusions reached in that decision merit greater attention and scrutiny, and proceedings in the Ninth Circuit will help ensure the cases and its issues get a wider airing.  Indeed, I would not be surprised if the Ninth Circuit ends up having both a regular panel and an en banc panel consider the issues in Jones v. Chappell all as a prelude to an (inevitable?) cert petition by the losing party on appeal.  In other words, stay tuned death penalty followers.

Recent related posts:

August 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"It’s Time to Overhaul Clemency"

The title of this post is the headline of this recent New York Times editorial.  Though I wish the headline was something more like "Prez Obama sucks for failing to overhaul clemency during his six years on the job," I am glad to see the Grey Lady again spotlighting the Obama Administration's conspicuous failings to date in this arena.  Here are excerpts: 

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates....

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

A few of many recent and older posts concerning federal clemency practices:

August 22, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 21, 2014

Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect

Via an e-mail from the National Association of Criminal Defense Lawyer, I just learned of a notable new opinion from the Kentucky Supreme Court.  Here is an excerpt from the NACDL's account of the ruling (as well as a link to the ruling):

In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter....

A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.

A link to NACDL's Formal Opinion 12-02 is available here.

A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here

August 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Let's reserve costly prison beds for dangerous offenders"

The title of this post is the headline of this new commentary appearing in Utah's Deseret News and authored by Grover Norquist and Derek Monson. Here are excerpts:

As the economy continues to sputter, Utah should continue to heed the practical wisdom of the frugal family and tighten its belt. There can be no sacred cows in the budget.

One area of spending that has traditionally been “off limits” for cuts — the prison system — can no longer escape examination. Utah’s growing prison population, which currently costs state taxpayers more than $250 million annually, is projected to add an additional 2,700 prison beds in the next two decades. If that increase would make us safer, it would be worth it.

But many of these additional beds are not for dangerous and serious offenders. In fact, Utah is sending more nonviolent offenders to prison than it did a decade ago and keeping them behind bars for longer periods of time. This includes a steep increase in female offenders as well as probationers sent to prison for “technical violations” of the terms of their supervision rather than for committing a new crime. In other words, many of those we choose to send to prison (or back to prison) are low-risk, nonviolent offenders.

This is costly and counterproductive. Research shows that low-level offenders often leave prison more dangerous than when they entered. As conservatives, we pride ourselves on being tough on crime, but we also must be tough on criminal justice spending. The question underlying every tax dollar spent on corrections should be: Is this making the public safer?...

Across the nation, other states have faced the same dramatic increases in prison costs, which are now the second-fastest-growing item in state budgets behind only Medicaid. Several of these states have found innovative ways to cut corrections spending while maintaining public safety. Texas, for instance, scrapped plans to build more prisons and put much of the savings into drug courts and treatment, with impressive results: Crime rates are at their lowest since 1968, and the falling inmate population enabled Texas to close three prisons, avoiding $3 billion in prison costs.

States like Georgia, Pennsylvania, South Carolina, Mississippi and South Dakota have adopted similar reforms that reduce prison populations and corrections costs while improving public safety, allowing them to reinvest some of the savings into programs proven to cut crime and reduce recidivism....

As signatories to the national Right on Crime movement, we are conservative leaders working to apply our conservative principles to the criminal justice system. As such, we are pleased that Utah is joining other states in demanding more cost-effective approaches to public safety, and we wholeheartedly support the efforts of Utah’s leadership to create a more effective criminal justice system.

August 21, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, August 20, 2014

Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft

Images (2)Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:

The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.  For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.

The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term.  Here is an excerpt from the heart of the opinion's analysis:

In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino.  There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons.  Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....

The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos.  We acknowledge that all fines serve the twin purposes of punishment and deterrence.  At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry.  The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....

[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses.  It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties.  However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them.  We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.

August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack