Tuesday, January 06, 2015

Notable discussions of children as mass incarceration’s "collateral damage"

Child-in-Court-boy-text1The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces."  Here is an excerpt:

A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....

A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.

Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.

Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....

Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....

John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”

I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders.  And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:

Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”

Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.

Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.

Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.

In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.

January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Monday, January 05, 2015

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Previewing (and predicting) federal sentencing prospects for former Virginia Gov McDonnell

The Washington Post has this lengthy article, headlined "What to expect at former Virginia governor Robert McDonnell’s sentencing," providing an effective preview of a high-profile white-collar sentencing taking place in federal court tomorrow. Here are highlights:

As a federal judge on Tuesday sets the punishment for former Virginia governor Robert F. McDonnell, he will consider legal issues as well as sweeping personal questions.  U.S. District Judge James R. Spencer will look first to guidelines that call for McDonnell to receive as much as 12 years and seven months for trading the influence of his office to a smooth-talking businessman in exchange for sweetheart loans, lavish vacations and high-end merchandise.

But the judge is not bound by those recommendations.  And his ultimate decision rests, in part, on intangible considerations: How serious was McDonnell’s public corruption?  What penalty might deter others in the former governor’s shoes?  What weight should be given to the good the former governor has done?...

rosecutors want McDonnell to spend at least 10 years and a month in prison.  The former governor’s attorneys believe a sentence of community service — and no time behind bars — would be sufficient.

Both sides will make their best pitches to the judge in person beginning at 10 a.m. McDonnell may offer a personal plea, as may some of his supporters.  Spencer has been given more than 440 letters that friends, family members and others wrote on the governor’s behalf, urging leniency and extolling the virtues of the onetime Republican rising star.  Spencer also has reviewed filings from prosecutors, who have accused McDonnell of feeling no remorse and still seeking to blame others....

The starting point for determining the former governor’s punishment is this: The U.S. probation office — the federal agency tasked with calculating a range of appropriate penalties according to the federal sentencing guidelines — has recommended that McDonnell face between 10 years and a month to 12 years and seven months in prison. There is no parole in the federal system, and if McDonnell were to be incarcerated, he would be able to reduce his time behind bars with good behavior by only 54 days a year, at most.

Spencer is not bound by the probation office’s recommendation — it is merely a technical calculation of how the office believes federal sentencing guidelines should be applied in the case — but experts say he typically heeds its advice....

After Spencer determines the guideline range, he will weigh entirely different factors as he fashions what he considers an appropriate punishment.  Among those that prosecutors and defense attorneys highlighted in McDonnell’s case: the nature and circumstances of his offenses, McDonnell’s personal history and characteristics, and the need to deter others from ending up in similar straits....

A former prosecutor and Judge Advocate General’s Corps officer, Spencer was appointed to the court by President Ronald Reagan in 1986.  Known as a no-nonsense and efficient jurist, he took senior status on the bench last year, meaning he is now semi-retired.  Jacob Frenkel, a former federal prosecutor who now does white collar criminal defense work, said Spencer probably will not impose a decade-long sentence, but defense attorneys’ bid for only probation is something of a “Hail Mary.”

I share the view that it is unlikely McDonnell will get either probation as he wishes or the 10 years in prison sought by the feds. As a betting man, I would put the over-under line at around three years. The nature of the crime and the defendant leads me to think the sentencing judges will be likely to impose a substantial prion term, but still something less (perhaps much less) than half a decade.

Prior related posts:

UPDATE: I just discovered that Randall Eliason at his Sidebars Legal Blog has this lengthy post about the McDonnell sentencing which provides much more detailed review of the interesting guideline calculation issues that are in dispute in the case.  

January 5, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Gearing up (finally) for start of capital trial of Boston Marathon bomber

TsarnaevsketchNearly two years after the vile (alleged?) crimes and challenging capture of Dzhokhar Tsarnaev, a very high-profile federal capital trial gets started today.  This lengthy Boston Globe story, headlined "Marathon bombing trial to start today with jury selection: Long 1st phase for Marathon bombing trial; testimony may begin next month," provides a helpful preview. Here are excerpts:

Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.

The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer....

For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.

The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.... The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.

The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.

Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.

Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.

Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.

But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.

Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.

The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.

The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements. In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.

Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.

Some prior related posts:

January 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, January 02, 2015

"Policing Public Order Without the Criminal Law"

The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:

Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point.  Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process.  These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.

Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions.  Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.

In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot.  Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means.  To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Thursday, January 01, 2015

Chief Justice promises fully electronic SCOTUS by 2016 in his 2014 year-end report

FuturamanAs reported here by Lyle Denniston at SCOTUSbog, the US Supreme Court "is moving toward a full and free-access system for all documents filed in cases before the Justices — a system expected to be working 'as soon as 2016,' Chief Justice John G. Roberts, Jr., revealed in his annual year-end report on the federal judiciary."  Here is a bit more about this exciting news:

The Court already receives some of its filings electronically, but the present arrangements do not include “all filings at the Court,” in the language the Chief Justice used to describe what will be available by 2016.  That, he said, will include “petitions and responses to petitions, merits briefs, and all other types of motions and applications.”  Public access to all of these materials will be available on the Court’s website without cost, he stressed.

The Chief Justice’s annual report was dominated by a theme of technological advances and their impact on the operation of the courts.  He acknowledged that, because of special concerns about security and other operating limitations for the courts, the judiciary has not been moving as rapidly as some other sectors of society in modernizing its information systems.  “The courts will often choose to be late to the harvest of American ingenuity,” he commented.

When the new system is in place and operating, according to Roberts, filings will still be made in paper form, but there will be a requirement for electronic versions when filed by any party that is represented by an attorney.  Those, like prison inmates, who are too poor to afford lawyers and filing fees and thus are allowed to file papers making their own pleas without cost, will not be required to make electronic submissions.  The Court staff will scan those so-called “pauper” filings and upload them to the Court’s system so that those, too, will be available for public access....

The year-end report also discussed the progress of the lower federal courts in adopting and improving the electronic case-filing system that has been in place since 2001.  More than one billion documents can now be retrieved from that system, the Chief Justice noted.  A “next generation” improvement in that system is now being developed within the judiciary, he added.

The full year-end report from the Chief Justice of the United States can be accessed at this link. It starts with this amusing paragraph:

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics!  The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another.  Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

Kudos to the Supreme Court for being committed to having all its materials on-line for free access to all and to the Chief Justice for effectively explaining the work being done to make this commitment a reality.

January 1, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, December 31, 2014

"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"

The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:

This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes.  The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.

The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others.  The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.

December 31, 2014 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 29, 2014

Split Ninth Circuit panel reverses Arizona death sentence over sharp dissent

The Ninth Circuit today issued a notable reversal of an Arizona death sentence by finding that the defendant's attorney was ineffective at sentencing even though the Arizona courts found to the contrary. The ruling in Mann v. Ryan, 09-99017 (9th Cir. Dec. 29, 2014) (available here), produced a notable dissent by Judge Kozinski starting this way:

Once more unto the breach.  Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.”  Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).  In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review.  The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court.  One way or the other, Mann will be executed, if he doesn’t die of old age first.  But only after he — and the families of the two people he killed 25 years ago — endure what may be decades of further uncertainty.  Where’s the justice in that?  I respectfully dissent from Part III of the majority’s opinion.

December 29, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Sunday, December 28, 2014

Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate

McdonnellThis lengthy local article from Virginia, headlined "U.S. seeks McDonnell sentence of 10 to 12 years," details the competing arguments being set forth in a high-profile federal white-collar sentencing slated for next month. Here are excerpts from the piece:

Prosecutors are asking that former Gov. Bob McDonnell, convicted of 11 corruption charges in September, be imprisoned for at least 10 years and one month to as much as 12 years and seven months when sentenced Jan. 6 by U.S. District Judge James R. Spencer.

In sentencing memorandums filed Tuesday, the U.S. Attorney’s Office asked for a term within the federal sentencing guideline range determined by the probation office, while McDonnell’s lawyers asked for 6,000 hours of community service instead of prison time and argued the guideline range should be 33 to 41 months.

“After serving as a prosecutor and attorney general, this defendant corrupted an office that few bribery defendants achieve, and then falsely testified and shifted blame for his actions before the jury that convicted him,” wrote Dana J. Boente, the U.S. attorney for the Eastern District of Virginia. McDonnell, the government wrote, “stands before this court as only the 12th governor in the United States — and the first governor of Virginia — to be convicted of a public corruption offense.”

McDonnell and his wife, Maureen, were convicted in a six-week trial in which the marriage and the former first lady were portrayed as troubled.  Maureen McDonnell was convicted of nine charges, one later thrown out, and will be sentenced Feb. 20.  Bob McDonnell testified on his own behalf, but his wife did not.  The McDonnells were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the then-CEO of Star Scientific, in exchange for promoting a new dietary supplement product. Williams, a key government witness, was granted immunity....

In its 31-page sentencing memorandum, the government urged Spencer to adopt the findings in the presentencing report from the probation office and reject McDonnell’s objections.  Prosecutors argued that McDonnell abused his power and violated his duty to the people of Virginia.

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to elected officials existed and that he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’ ” prosecutors wrote. “But he was not convicted of accepting gifts; he was convicted of accepting bribes. And bribery has always been a violation of state (as well as federal) law,” they added.  The government said the presentencing report correctly factored in obstruction of justice based on what it termed McDonnell’s lies from the witness stand....

McDonnell’s 51-page sentencing position, also filed Tuesday, took a very different view of the case.  It said: “Bob McDonnell has devoted his life to public service, family, and faith. This offense is a total aberration in what was by all accounts a successful and honorable career.”

McDonnell argued the appropriate guideline range should be 33 to 41 months. “A sentence of imprisonment of any length, however, much less one of 10 years or more, would be a severely disproportionate punishment,” his lawyers contend.  “Instead, a variant sentence of probation with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote location served over three years is ‘sufficient, but not greater than necessary,’ to provide a just punishment,” they wrote.

“An outcome in which Mr. McDonnell serves any time in prison ... while Mr. Williams suffers no criminal justice consequences at all would neither promote respect for the law nor provide a just resolution to this case,” McDonnell’s lawyers argued.

Much of McDonnell’s sentencing position is taken up with his biography, accomplishments, and service in the military and as a state legislator, Virginia attorney general and governor.  Seven appendixes, including hundreds of letters of support, were filed along with the document.

The memorandum notes the outline of the scheme for which he was convicted.  “Mr. McDonnell’s actual conduct, however, differs in critical ways from that of others who have been convicted under the same federal bribery laws,” McDonnell’s lawyers argued.  “Mr. McDonnell did not demand or receive cash payments from Mr. Williams.  He did not take briefcases of money or hide stacks of $100 bills in his freezer,” they wrote.  “Rather, the quid that the indictment charges that Mr. McDonnell or his family members received were gifts — a wedding gift to Mr. McDonnell’s daughter and several rounds of golf at Mr. Williams’ country club — as well as three loans at commercial rates that the McDonnells paid back with interest.”

While McDonnell’s decision to accept the items showed poor judgment, Virginia state ethics laws at the time permitted officials to accept unlimited gifts of that nature, McDonnell’s lawyers argued.  “Numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy hangers-on.”...

The defense contends that McDonnell’s trial and conviction already act as powerful deterrents to criminal conduct by others, making imprisonment unnecessary.  “No elected official would want to live through the last year of Mr. McDonnell’s life,” his lawyers write.  McDonnell and his family “have already suffered tremendously,” the lawyers write. “His once-promising political career is dead,” and “his marriage has fallen apart.”

Defense lawyers wrote that McDonnell’s “sterling reputation in the community has been irreparably damaged,” he has lost his ability to practice law, he is likely to lose his state pension, “and he will have to sell his family home.”  The former governor’s lawyers also contend prison is unnecessary to protect the public because there is no risk McDonnell will commit any further crimes. “He is 60 years old and out of politics.”

Relatedly, this Washington Post article reports on some of the notable letters written to the sentencing judge in support McDonnell. The piece is headlined "Former Virginia governor Bob McDonnell’s downfall is wife’s fault, daughter says," and it provides this link to some notable character letters.

Prior related posts:

December 28, 2014 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities.  The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

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

Shouldn't every parole board (and sentencing commission) include a former inmate?

The question in the title of this post is promoted by this interesting and lengthy New York Times article headlined "Ex­-Inmate on Connecticut Parole Board Brings an Insider’s View to Hearings." Here are exceprts:

There was the usual grab bag of inmates preparing to be heard here, from the career offender with a heroin problem to the plotter of a jewel heist to the glum men with girlfriend trouble. All were former convicts who had landed back in prison on parole violations, and this was their chance to explain their conduct to the Connecticut Board of Pardons and Paroles.

One by one, they were led to rooms at their prisons to participate via teleconference in hearings that dispensed assembly­line justice. Soon, they were offering reasons for their mistakes that ran from the fantastic (“Yes, I had a knife but only because I was cooking”) to the familiar (“My girlfriend made me do it”).

One cog in the machine was different, though: The two-­member panel weighing each inmate’s fate included a man who was himself a former inmate. The expertise that the former prisoner, Kenneth F. Ireland, brought to the task — intimate knowledge of the state’s criminal justice system — came in a way no one could envy: In 1989, a day after he turned 20, Mr. Ireland was convicted of raping and murdering Barbara Pelkey, a Wallingford factory worker.

The crime occurred when he was 16. He received a 50­-year sentence and spent nearly half his life, from the age of 18 until he was 39, in prison. Despite his assertions that he was innocent, friends stopped believing in him, and family drifted away. Then, in 2009, DNA testing performed at the insistence of the Connecticut Innocence Project exonerated him and identified the real culprit.

Rather than spurn further dealings with the authorities, Mr. Ireland, 45, allowed his name to be suggested for a seat on the parole board this year. “I’ve been on the inside, and I understand the programs, the issues confronting the inmates,” he said.

Nominated in October by Gov. Dannel P. Malloy, a Democrat, Mr. Ireland is now serving provisionally, along with four other nominees, until state legislators vote on the appointments next year.

Timothy S. Fisher, dean of the University of Connecticut School of Law, got to know Mr. Ireland through work he does on behalf of the wrongfully convicted. Mr. Fisher championed the idea of adding Mr. Ireland to the board in a letter to Nancy Wyman, the lieutenant governor, in March.

“He has a very cleareyed understanding of the people in prison,” Mr. Fisher said. “How so many of them say ‘I didn’t do it,’ and yet he’s no fool. He’s been around them and he knows there’s injustice, but he also knows that there are people who will try to pull a fast one. I think he will be a more discerning judge of character on this board than almost anyone.”...

The idea of having Mr. Ireland on the board appears to have originated with Vivien Blackford, a member of the Connecticut Sentencing Commission, according to people who supported the appointment. “Having been in prison, he brings so much to the board because he understands the experience, the perspectives and the reasons that people do what they do,” Ms. Blackford said.

Mr. Ireland quit a steady job as a bookkeeper to accept the appointment, which comes with a salary — though that does not seem to be what motivates him

December 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, December 19, 2014

"Six Reasons the Death Penalty is Becoming More Expensive"

The title of this post is the headline of this effective piece from The Marshall Project whihc served as something of a companion piece to its effective coverage (noted here) of how localities struggle with the economic realities of pursuing capital cases.  Here are excerpts:

We know the basic reasons why death penalty cases are expensive: more lawyers, more experts, more time. Prosecutors and defense attorneys often spend more than a year preparing for death penalty trials. Every successful conviction is appealed to several state and federal courts, meaning the government pays for both prosecutors and defenders to pick over the trial transcript and for judges and clerks to spend hours reading appeals. While this is going on, it costs more to house prisoners on death row than in the general population....

But the death penalty is also growing more expensive with each passing year. A 2010 report prepared for the Judicial Conference of the United States found that between 1989 and 1997 the median cost of a federal death penalty case that went to trial was $269,139; between 1998 and 2004 it had grown to $620,932.

Nobody has methodically studied how costs have been growing in state death penalty cases, but in interviews with more than 30 prosecutors, defense attorneys and other experts the consensus was that costs are going up fast. Here are the main reasons they cited:

1. Attorney Pay...

2. Experts...

3. Unpredictability...

4. Mitigation...

5. Juries...

6. Housing...

A few recent and older related posts:

December 19, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, December 17, 2014

Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?

Images (6)As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Specifically, Section 538 of the Cromnibus states, in relevant part:

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear.  For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced.  Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana."  Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.

That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation.  In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.

The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."  Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws.  But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.  

Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws.  In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."

Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms.  If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.

Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states.  But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.

In sum, to answer my own question in the title of this post, I would say simple YES.

Some previous related posts:

December 17, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Detailed examination of how local costs may slowly kill the death penalty

The Marshall Project has this effective new piece on the modern realities of administering capital punishment. The piece is headlined "The Slow Death of the Death Penalty: The public supports it, but the costs are lethal." Here are excerpts from a lengthy piece that merits a full read:

While many prosecutors are still reluctant to admit that finances play a role in their decisions about the death penalty, some of them – especially in small, rural counties – have been increasingly frank in wondering whether capital punishment is worth the price to their communities. “You have to be very responsible in selecting where you want to spend your money,” said Stephen Taylor, a prosecutor in Liberty County, Texas. “You never know how long a case is going to take.”

Some prosecutors are far more blunt, and even hyperbolic, as they lament the state of affairs. “I know now that if I file a capital murder case and don't seek the death penalty, the expense is much less,” said James Farren, the District Attorney of Randall County in the Texas panhandle. “While I know that justice is not for sale, if I bankrupt the county, and we simply don't have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?”

Since capital punishment was reinstated by the Supreme Court in 1976, the cost of carrying out a death penalty trial has risen steadily. Increasing legal protections for defendants have translated into more and more hours of preparatory work by both sides. Fees for court-appointed attorneys and expert witnesses have climbed. Where once psychiatrists considered an IQ test and a quick interview sufficient to establish the mental state of a defendant, now it is routine to obtain an entire mental health history. Lab tests have become more numerous and elaborate. Defense teams now routinely employ mitigation experts, who comb through a defendant’s life history for evidence that might sway a jury towards leniency at the sentencing phase. Capital defendants are automatically entitled to appeals, which often last for years. Throughout those years, the defendant lives on death row, which tends to cost more due to heightened security.

In states such as Texas, Arizona, and Washington, where county governments pay for both the prosecution and defense of capital defendants (nearly all of whom are indigent) when they go to trial, the pressure on local budgets is especially strong. To ease the fiscal burden, some states have formed agencies to handle the defense or prosecution of capital cases. Other states reimburse counties for the expenses of a trial.

But even with that help, county officials around the country have sometimes had to raise taxes and cut spending to pay for death penalty trials. District attorneys have taken note. Many remain reluctant to acknowledge how fiscal concerns affect their decisions — they don’t want to appear to be cheapening the lives of murder victims. But a few are surprisingly candid. Their statements suggest that money is more than ever part of the explanation for the steep decline in death-penalty cases over the past decade. That is particularly the case in Texas, where there are few political obstacles to carrying out executions.

In the six states that have abolished capital punishment over the past decade, Republican and Democratic officials have also emphasized the cost of the death penalty as a major rationale. Even in states that retain the punishment, cost has played a central role in the conversion narratives of conservative lawmakers, public officials, and others who question the death penalty as a waste of taxpayer dollars.

The rising cost of capital trials disproportionately affects counties with small populations. While the number of death sentences in the United States has been dropping steadily since a peak in the mid-1990s, an overwhelming number of the cases still being filed come from urban counties. There, the tax bases are larger, and the impact of an expensive trial may be more easily absorbed. (Harris County, where Houston is located, has been responsible for more executions than Georgia and Alabama combined.) Texas counties with fewer than 300,000 residents sought the death penalty on average 15 times per year from 1992 to 1996. Between 2002 and 2005, the average was four.

Prosecutors don’t cite statistics when discussing the costs of the death penalty; they tell stories. In Texas, they point to Jasper County, near the Louisiana border, where in June 1998 three white supremacists killed a black man, James Byrd Jr., by chaining his ankles to the back of their pickup truck and dragging his body for more than three miles. The murder made international headlines and led to new state and federal hate crime legislation.

December 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, December 16, 2014

Federal judge in sentencing proceeding(?!?!) declares Prez Obama's immigration order unconstitutional

As reported in this CNN piece, a federal district judge used a federal criminal case to render an opinion that President Obama's recent immigration execution action was unconstitutional. Here are the basic details of a peculiar decision:

A federal judge in Pennsylvania ruled Tuesday that President Barack Obama's move to halt deportations for millions of undocumented immigrants violates the Constitution -- but it's not clear that the ruling will have any immediate impact.

Pittsburgh-based U.S. District Judge Arthur Schwab, a George W. Bush appointee, became the first judge to rule on the legality of Obama's executive overhaul of immigration rules when he issued his unusual opinion in a criminal case. The Justice Department shot back that the judge was "flatly wrong" and his ruling wouldn't halt the implementation of Obama's immigration policies.

The decision -- which came in a criminal case against Honduran immigrant Elionardo Juarez-Escobar, who'd been deported before, returned to the United States and faced charges of unlawful re-entry after a drunk driving arrest -- was unexpected, and is unrelated to the legal challenge dozens of states have launched against Obama's move.

Prosecutors in the case argued that Obama's immigration policies were only meant to apply to civil proceedings, and don't have any impact on criminal proceedings like what Juarez-Escobar faced. Still, Schwab said in his 38-page ruling that Juarez-Escobar could have benefited under Obama's action to halt deportations for some undocumented immigrants.

Obama's action violates the Constitution's separation of powers and its "take care clause," Schwab said. He wrote that Obama's action "goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights."...

Schwab said Juarez-Escobar didn't fall within any of the priority categories Obama identified for deportation, so it's not clear that removing him from the country would be a priority -- potentially blurring the lines between civil and criminal proceedings. The Justice Department blasted the opinion, with a spokesperson saying it was "unfounded and the court had no basis to issue such an order."

The full 38-page opinion in this case is available at this link, and there are a number of interesting passages beyond the Court's constitutional analysis.  Of particular note, Judge Schwab discusses at some length the Supreme Court's Padilla ruling and its emphasis on the connections between criminal convictions and deportation consequences. 

Unsurprisingly, this ruling has already become the subject of some notable commentary.  Here is some of the early commentary:

December 16, 2014 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws

California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:

Rarely in any counsel’s career has he or she had to file an emergency motion.  However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83.  This is a 1696 page spending bill.  In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....

In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California.  In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end.  At least, there is not a direct policy mandate from Congress.  It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....

If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy.  The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case.  Furthermore, all future prosecutions of legal California cultivators would cease to exist....

Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence.  If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government.  It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.

Download Motion to postpone federal MJ sentencing in California

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack