Saturday, October 19, 2013
Talk in Georgia about modifying its (too) tough approach to Atkins death penalty issueThis new AP article, headlined "Ga. to review tough death penalty provision," reports about talk of possible reform to Georgia's application of the constitutionally mandated death penalty exception for the mentally retarded. Here are excerpts:
The state that was the first to pass a law prohibiting the execution of mentally disabled death row inmates is revisiting a requirement for defendants to prove the disability beyond a reasonable doubt — the strictest burden of proof in the nation.
A state House committee is holding an out-of-session meeting Thursday to seek input from the public. Other states that impose the death penalty have a lower threshold for proving mental disability, and some don't set standards at all....
Georgia's law is the strictest in the U.S. even though the state was also the first, in 1988, to pass a law prohibiting the execution of mentally disabled death row inmates. The U.S. Supreme Court followed suit in 2002, ruling that the execution of mentally disabled offenders is unconstitutional....
Thursday's meeting comes against the backdrop of the case of Warren Lee Hill, who was sentenced to die for the 1990 beating death of fellow inmate Joseph Handspike, who was bludgeoned with a nail-studded board as he slept. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times. Hil
l's lawyers have long maintained he is mentally disabled and therefore shouldn't be executed. The state has consistently argued that his lawyers have failed to prove his mental disability beyond a reasonable doubt. Hill has come within hours of execution on several occasions, most recently in July. Each time, a court has stepped in at the last minute and granted a delay based on challenges raised by his lawyers. Only one of those challenges was related to his mental abilities, and it was later dismissed.
A coalition of groups that advocate for people with developmental disabilities pushed for the upcoming legislative committee meeting and has been working to get Georgia's standard of proof changed to a preponderance of the evidence rather than proof beyond a reasonable doubt. Hill's case has drawn national attention and has shone a spotlight on Georgia's tough standard, they say.
The process has taken an enormous amount of education, said Kathy Keeley, executive director of All About Developmental Disabilities. Rather than opposition to or support for the measure she's pushing, she's mostly encountered a lack of awareness about what the state's law says, she said. The groups are hoping to not only express their views at the meeting, but also to hear from others to get a broader perspective, Keeley said. The changes should be relatively simple and very narrow in scope, targeting only the burden of proof for death penalty defendants, she said.
Ashley Wright, district attorney for the Augusta district and president of the state District Attorneys' Association, said prosecutors question the logic of changing a law that they don't see as problematic and that has repeatedly been upheld by state and federal courts. "The district attorneys don't believe that you change a law for no reason and, in this case, the law appears to be working," she said. "Where has a jury done a disservice? Why are we putting all our eggs in the defendant's basket and forgetting that there's a victim?"
Prosecutors agree that the mentally disabled shouldn't be executed, and defendants are frequently spared the death penalty when there is proof of their mental disability supported by appropriate documentation from credible and reliable experts, she said.
But Hill's lawyer, Brian Kammer, argues that psychiatric diagnoses are complex, and "experts who have to make diagnoses do not do so beyond a reasonable doubt, they do it to a reasonable scientific certainty." Furthermore, he said, disagreements between experts make the beyond-a-reasonable-doubt standard nearly impossible to meet.... In Hill's case, a state court judge concluded the defendant was probably mentally disabled. In any other state, that would have spared him the death penalty, Kammer said.
Thursday, October 17, 2013
"The Federal Death Penalty and the Constitutionality of Capital Punishment"The title of this post is the title of this notable new article by Scott Howe recently posted to SSRN. Here is the abstract:
The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment. In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions.
These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states. However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications. The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder. However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice supports a national consensus favoring capital punishment for ordinary murder.
Wednesday, October 16, 2013
Notable shots at federal prosecutorial efforts in special concurrence to Eleventh Circuit sentencing reversalI was intrigued to come across what stuck me as an unusual and sharp "special concurrence" from the pen of US District Judge Dudley Bowen Jr., who was sitting by designation and provided an additional panel vote to reverse a sentence in US v. Rodriguez, No. 11-15911 (Oct. 16, 2013) (available here). Here is the substantive reason for the reversal as explained by the main panel opinion:
Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart. For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence. We agree.
A circuit decision finding insufficient the evidence relied upon by a district judge at sentencing is itself notable. But the substance and style of Judge Bowen's four-page concurrence really caught my attention. These excerpts highlight why:
I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.
This is another case wherein the Government has failed to come forward with evidence at a critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else....
It is true that a sentencing proceeding is more flexible and less formalized than a trial to a jury.... I fear that the latitude allowed in sentencing proceedings often lulls the Government’s lawyers into a species of spectator. However, the lower standard of proof, the district court’s wide discretion, and the degree of informality in no way lessen the importance or the due process implications of the event....
In fairness to the district court, findings made at a sentencing hearing are often entered months after a trial, following other trials, adversary proceedings, contested matters, and numerous matters in litigation. The United States Probation officers correctly concentrate on the preparation of a Presentence Investigation Report, which may include evidentiary matters, opinions, conclusions, and recommendations based on subjective criteria. When facts in the Presentence Investigation Report are disputed, however, the district court needs more. No one is better positioned than trial counsel for the Government to anticipate and satisfy the need for articulation, protection, and supplementation of the record with the testimony of witnesses, necessary exhibits, or other evidence. Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.
Two notable SCOTUS criminal procedure cases up for argument todayThe government shutdown is not preventing the Supreme Court from doing its usual work, and today that work includes hearing oral argument in two criminal cases: Kansas v. Cheever, a state death penalty case concerning Fifth Amendment issues and Kaley v. United States, a federal case concerning whether and when an indicted defendant's assets can be frozen. As usual, SCOTUSblog has terrific argument previews, and here are links and excerpts:
The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.” In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial. But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder? Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever? That is the question before the Court in Kansas v. Cheever.
Kaley v. United States... before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer. The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze. At first blush, that question sounds fairly dry. But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict. As such, a pro-defendant ruling in the case could shift the balance of power in many criminal proceedings back away from the federal government. Underscoring the significance of the case is the fact that Michael Dreeben, the Deputy Solicitor General with primary responsibility for criminal cases at the Court, will argue on behalf of the United States.
For reasons suggested in these previews, I suspect the Cheever case will generally get more public attention even though the Kaley case is plainly far more consequential and important for the modern administration of criminal justice systems.
UPDATE: thanks to SCOTUSblog, I see now that the transcript from oral argument in Kaley v. United States is now here at this link and the oral argument transcript in Kansas v. Cheever is now here at this link.
Intriguing controversy over victim involvement in Whitey Bulger sentencingThis new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month. Here are the details:
Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.
The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.
On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.
“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.
It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....
There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.
This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence. But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims. For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.
Tuesday, October 15, 2013
Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett argumentsAs mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications. I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.
Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues. A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences. I am likely fixated on this notion of a "finality fixation" because I am currently working on a symposium article on this topic. Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.
At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.
Point 1: Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.
Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism. (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense. See Table 6 of USSC report.)
Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2). The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from.
Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences. Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2). (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification. Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)
In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality." And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence. Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present.
Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases. As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness. And that reality fascinates and frustrates me.
Am I silly, dear readers, to be so fascinated and frustrated by all this? I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- Full Sixth Circuit grants en banc review in Blewett
- Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)
October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, October 14, 2013
Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in ChicagoThis new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes. Here are excerpts:
Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.
The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.
The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.
“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.
A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.
“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...
Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.
Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years. Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....
Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns. But he’s worried about first-time offenders getting three-year prison terms....
Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.
The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).
In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:
As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....
JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments. First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill. This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, October 13, 2013
Parole precogs: computerized risk assessments impacting state parole decision-makingPredicting who is likely to commit a crime in the future is no easy task, as fans of "Minority Report" know well. But states that retain discretionary parole release mechanisms to some extent require its officials to do just that. And, as this lengthy Wall Street Journal article explains, state officials are (in my view, wisely) relying more and more on computerized risk assessment instruments when making parole decisions. The WSJ piece is headlined "State Parole Boards Use Software to Decide Which Inmates to Release: Programs look at prisoners' biographies for patterns that predict future crime," and here are excerpts:
Driven to cut ballooning corrections costs, more states are requiring parole boards to make better decisions about which convicts to keep in prison and which to release. Increasingly, parole officials are adopting data- and evidence-based methods, many involving software programs, to calculate an inmate's odds of recidivism.
The policy changes are leading to a quiet and surprising shift across the U.S. in how parole decisions are made. Officials accustomed to relying heavily on experience and intuition when making parole rulings now find they also must take computerized inmate assessments and personality tests into account.
In the traditional system, factors like the severity of a crime or whether an offender shows remorse weigh heavily in parole rulings, criminologists say. By contrast, automated assessments based on inmate interviews and biographical data such as age at first arrest are designed to recognize patterns that may predict future crime and make release decisions more objective, advocates of the new tools say.
In the past several years, at least 15 states including Louisiana, Kentucky, Hawaii and Ohio have implemented policies requiring corrections systems to adopt modern risk-assessment methods, according to the Pew Charitable Trusts' Public Safety Performance Project. California is using computerized inmate assessments to make decisions about levels of supervision for individual parolees. This year, West Virginia began requiring that all felons receive risk assessments; judges receive the reports before sentencing with the option to incorporate the scores into their decisions.
Such methods can contradict the instincts of corrections officials, by classifying violent offenders as a lower recidivism risk than someone convicted of a nonviolent robbery or drug offense. Criminologists say people convicted of crimes like murder often are older when considered for release, making them less likely to reoffend. Inmates convicted of nonviolent crimes like property theft, meanwhile, tend to be younger, more impulsive and adventurous—all predictors of repeat criminality....
Wider acceptance of computerized risk assessments, along with other measures to reduce state corrections budgets, has coincided with the first declines in the national incarceration rate in more than a decade.
The number of inmates in state and federal facilities fell nearly 1% in 2011 to 1.6 million, after edging down 0.1% in the prior year. The 2011 decline came entirely from state prisons, which shed 21,600 inmates, offsetting an increase of 6,600 federal prisoners. Preliminary 2012 data shows an even larger fall in state inmates of 29,000.
Experts say one reason for the decline is that fewer parolees are returning to prison. About 12% of parolees were re-incarcerated at some point in 2011 compared with 15% in 2006, representing the fifth straight year of decline, according to Justice Department data.
Texas, by reputation a tough-on-crime state, has been consistently using risk assessment longer than many states and is boosting the number of prisoners it paroles each year. With its current system, in use since 2001, it released 37% of parole applicants in 2012 versus 28% in 2005 — some 10,000 more prisoners released in 2012.
Officials in Michigan credit computerized assessments, introduced in 2006 and adopted statewide in 2008, with helping reduce the state's prison population by more than 15% from its peak in 2007 and with lowering the three-year recidivism rate by 10 percentage points since 2005.
Still, experts say it is difficult to measure the direct impact of risk prediction because states have also taken other steps to rein in corrections costs, such as reducing penalties for drug offenses and transferring inmates to local jails.
Michigan's assessments withstood a legal challenge in 2011, when prosecutors sought to reverse the parole of Michelle Elias, who had served 25 years for murdering her lover's husband. A lower court, siding with the prosecutor, ruled the parole board hadn't placed enough weight on the "egregious nature of the crime," court documents say. The Michigan Court of Appeals overturned the decision and upheld Ms. Elias's release.
Yet earlier this month, the same appeals court ruled the Michigan parole board had abused its discretion by releasing a man convicted of molesting his daughter. He hadn't received sex-offender therapy while in prison, but three assessments, including one using [the computer program] Compas, had deemed him a low risk of reoffending. The appeals court, in an unpublished decision that echoed a lower court, said that Compas could be manipulated if presented "with inadequate data or individuals who lie."
The Compas software designer, Northpointe Inc., says the assessments are meant to improve, not replace, human intelligence. Tim Brennan, chief scientist at Northpointe, a unit of Volaris Group, said the Compas system has features that help detect lying, but data-entry mistakes or inmate deceptiveness can affect accuracy, he said. The company says that officials should override the system's decisions at rates of 8% to 15%.
Many assessment systems lean heavily on research by criminologists including Edward Latessa, professor at the Center for Criminal Justice Research at the University of Cincinnati. Parole boards, typically staffed with political appointees, have lacked the information, training and time to make sound decisions about who should be released, Dr. Latessa said. The process, he said, is one factor contributing to the population surge in the nation's prisons, including a fivefold increase in the number of prisoners nationwide from 1978 to 2009, according to the Department of Justice.
"The problem with a judge or a parole board is they can't pull together all the information they need to make good decisions," said Dr. Latessa, who developed an open-source software assessment system called ORAS used in Ohio and other states. Ohio adopted ORAS last year as the result of legislation aimed at addressing overcrowded prisons and containing corrections spending. Dr. Latessa does paid consulting work with state corrections agencies but isn't paid for use of the system. "They look at one or two things," he said. "Good assessment tools look at 50 things."
Some assessments analyze as many as 100 factors, including whether the offender is married, the age of first arrest and whether he believes his conviction is unfair. In Texas, a rudimentary risk-assessment measures just 10 factors. Data gathered in interviews with inmates is transmitted to the offices of Texas parole board members, who vote remotely, often by computer.
Parole officials say assessment scores are just one factor they consider. Some experts say relying on statistics can result in racial bias, even though questionnaires don't explicitly ask about race. Data such as how many times a person has been incarcerated can act as an unfair proxy for race, said Bernard Harcourt, a University of Chicago professor of law and political science. "There's a real connection between race and prior criminal history, and a real link between prior criminal history and prediction," Mr. Harcourt said. "The two combine in a toxic and combustive way."
Christopher Baird, former head of the National Council on Crime and Delinquency, said statistical tools are best used to help set supervision guidelines for parolees rather than determine prison sentences or decide who should be released. "It's very important to realize what their limitations are," said Mr. Baird, who developed one of the earliest risk-assessment tools, for the state of Wisconsin in the late 1970s. "That's lost when you start introducing the word 'prediction' and start applying that to individual cases."
October 13, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Saturday, October 12, 2013
Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task. Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.
In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording. (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman." The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)
October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, October 10, 2013
US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleasRegular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:
Some prior posts noting Judge Gleeson's recent sentencing opinions:
I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack
Wednesday, October 09, 2013
District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals
I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)
For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands. The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:
This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines. Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.
There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair. In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice. See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.
Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence. As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable. Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case. The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.
It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.
October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Split Tennessee Supreme Court extensively debates capital proportionality review
This local article from Tennessee, headlined "State Supreme Court Upholds Death Sentence, Maintains Sentencing Review Standards For Death Penalty Cases," provides an effective summary of an extensive opinion handed down yesterday concerning capital proportionality review. Here are excerpts:
The 50+ page majority opinion in Tennessee v. Pruitt is available at this link, and the partial dissent which checks in at 18 pages is available here.
The Tennessee Supreme Court, in a 3-2 decision, has upheld a death sentence for a Memphis-area man who was convicted of first-degree felony murder after he killed an elderly man while stealing his car.While the entire Court agreed that Corinio Pruitt was guilty, the dissenting justices would have modified the sentence to life without parole.
In reviewing a death penalty case, the Court is required by Tennessee law to conduct what is called a “proportionality review” to ensure that the sentence of death is appropriate in comparison to similar cases. Before conducting a proportionality review with the specific facts in the Pruitt case, the Court first considered whether the methods for such review should be modified. In fact, after the case was argued before the Tennessee Supreme Court in 2012, the Court determined that the issue of proportionality review required additional briefing and argument. After receiving supplementary information from the parties, the Court held oral arguments a second time earlier this year.
The primary issue is the pool of cases used to conduct the comparison in a death penalty case. In conducting its proportionality review, the Court looks at the pool of cases and considers the facts of the crimes, the characteristics of the defendants, and the circumstances of the crimes, with a goal of determining whether a death sentence is excessive or disproportionate.
In 1997, the Court determined that it would compare all death penalty sentences to other cases in which the death penalty was sought. Prior to that, the Court considered all cases in which a defendant had been convicted of first-degree murder, but was not necessarily considered for a death sentence.
The Court on Tuesday rejected the proposal by the defense that it should broaden the pool of cases to include all first-degree murder cases, including those in which the death penalty was never sought. Instead, the Court upheld its previous decisions since 1997 that have conducted a proportionality review by looking only at cases in which the state sought the death penalty and in which a penalty phase was held, regardless of the sentence actually imposed by the jury.
The Court ruled it was inappropriate to review the prosecutors’ initial decisions regarding whether to seek the death penalty at the onset of the case, reaffirming its 1997 Opinion which “noted that including these first degree murder cases in the pool would equate to an implicit review of prosecutorial discretion, that is generally not subject to judicial review.”...
In their separate opinion, Justice William C. Koch, Jr. and Justice Sharon G. Lee, after noting that all murders are serious crimes, stated that comparing all first-degree murder cases would be more consistent with the Tennessee law that requires proportionality review and with the rule that capital punishment is not appropriate for all murders but is reserved for only the most heinous murders and the most dangerous murderers.
The two dissenting justices also pointed to a 2007 American Bar Association study of Tennessee’s death penalty, which stated that the limited pool of cases the Court adopted in 1997 undercut the purpose of proportionality review. After considering Mr. Pruitt’s background and the nature of his crime in light of similar first-degree murder cases in Tennessee, the two justices determined that Mr. Pruitt should be sentenced to life imprisonment without the possibility of parole.
Tuesday, October 08, 2013
How should the law — federal or state — deal with a 10-year-old serious sex offender?The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution. The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:
Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.
The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.
The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.
The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved. The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said. He must also register as a sex offender in certain states, according to his lawyer.
"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."
Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats. He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"
"Native American Sentencing Disparity and the Case of Dana Deegan"
The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law. Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright.
I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion. And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:
Schedule of Speakers:
Overview of the Disparity Problem and its Origins
- BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
- Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Impact of Disparity on Native Americans - The Case of Dana Deegan
- Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
- Judge David E. Ackerson, St. Louis County, Minnesota
- Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
- Marmie Jotter, sister of Dana Deegan and licensed psychotherapist
How the Guidelines Unfairly Treat Domestic Violence Victims
- Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist
What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case. The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:
When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....
Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.
Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’ ”
But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.
Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.
Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.
Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.
O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”
W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.
Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...
Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.
Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.
“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.
The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.
"A messy follow-up to Lafler and Frye: Can 'fun' facts produce 'good' law?"
The title of this post is the title of this great case preview by Rory Little over at SCOTUSblog concerning today's notable Supreme Court oral argument on a topic that ought to interest sentencing fans. Here is how it begins:
When the Supreme Court, two Terms ago, extended Strickland’s “ineffective assistance of counsel” doctrine to plea negotiations (Lafler v. Cooper and Missouri v. Frye), Justice Alito objected in dissent to “its opaque discussion of remedy” and begged the Court to “come to the rescue” by providing better guidance. Then Michigan’s Solicitor General sought certiorari to review the Sixth Circuit’s grant of habeas relief to a prisoner who claimed that bad lawyering led her to withdraw from a sweet plea deal. Justice Alito, the only Justice not using the “cert. pool” to evaluate petitions, likely did not object -- and Vonlee Titlow’s pro se cert. opposition failed to highlight the messy and unsettled facts that Michigan’s petition glossed over. But Tuesday’s oral argument in Burt v. Titlow may highlight problems with sometimes-too-speedy “cert. pool” grants. The Justices are likely to feel frustrated in extracting useful guidance from parties that can’t agree on even the most basic facts.
UPDATE: With thanks again to SCOTUSblog, I see that the transcript from the oral argument in Burt v. Titlow is now available here. I will do an additional update if anything special jumps off the page from the transcript.
Monday, October 07, 2013
SCOTUS gets back in action ... with a light sentencing docket (for now)
The calendar reports that it is the first monday in October, which means it is time for elite lawyers to throw out the first case to kick off the new Supreme Court season. (Given that a number of the SCOTUS Justices are baseball fans and have had the privilege to throw out first pitches, I think it would be really cool for them to invite a famous ballplayer to come throw out the first case. This SCOTUS Term, of course, it should be Mariano Rivera getting the privilege.)
SCOTUSblog is the place to go to keep up with the start of the new Term, and How Appealing has collected here some of the best SCOTUS preview article. Among the previews, I found especially effective Chris Geidner's coverage here at BuzzFeed under the headline "11 Supreme Court Cases That Could Change The U.S. In The Coming Year." That article not only spotlights the highest profile cases on the SCOTUS docket, but also notes a few potential sleepers already on the docket and issues on which cert seems likely to be granted in the coming months.
Disappointingly, as the title of this post notes, the new SCOTUS term is right now light on cases that should be of interest for sentencing fans. Indeed, as of now, there are not any "classic" sentencing issues before the Justices, and I do not see many such sentencing issues in the cert pipeline for SCOTUS unless a group of Justices want to now take up some long-smoldering post-Booker issues or some more recent post-Graham/Miller matters.
That said, there are still more than a few cases that sentencing fans should be keeping an eye on because they deal with concerns ranging from causation standards for restitution awards (Paroline v. U.S.) and causation standards for triggering a 20-year mandatory minimum term (Burrage v. U.S.) to application of the Sixth Amendment ruling in Lafter v. Cooper (Burt v. Titlow) to various death penalty application matters (Kansas v. Cheever and White v. Woodall).
I am sure this too quick SCOTUS preview post has missed a few issues of interest already on the docket and in the pipeline. Readers are urged to fill up the comments with any and all sentencing or broader criminal justice thoughts on the SCOTUS Term to come.
"Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy"The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:
The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have.
The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques.
Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.
Sunday, October 06, 2013
"Should Paris Hilton Receive a Lighter Prison Sentence Because She's Rich? Evidence from a Survey Experiment"The title of this post is the title of this intriguing article now available via SSRN authored by Josef Montag and Tomáš Sobek. Here is the abstract:
Different people experience the same punishment in with differing intensity. Some legal scholars are proposing that improving scientific knowledge and progressing technologies, such as fMRI, need and should be incorporated in our penal systems. This would facilitate calibrating the punishment not only to the crime but also to the offender’s persona, so that different people experience the same punishment for the same crime. However, such a substantial change in the criminal law and policy requires legitimacy and popular approval.
We run a simple pilot experiment in order to ascertain whether such approval is in sight. We found that it may be in the case of pecuniary punishments. With regard to incarceration policies, however, the possibility of popular acceptance of such changes seems remote. This finding presents a potential challenge to the literature and may complicate the implementation of suggested reforms. We aim to extend our study to investigate the factors behind this divergence and to check robustness of our experiments in Germany and the US.