Tuesday, January 12, 2016
A few (too) quick thoughts on the post-Hurst hydra
As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona. Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring. I tried to tell them that was insane. They didn't listen. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.
Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.
As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal). Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.
Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now. Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst. Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.
Prior related post:
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
Monday, January 11, 2016
Plain and Prejudice and Zombie Guideline Errors
The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning. Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes. But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error). Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:
Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.
Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....
The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures. However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.
"Guilt, Innocence, and Due Process of Plea Bargaining"
The title of this post is the title of this recent paper authored by Donald Dripps that I just noticed on SSRN. Here is the abstract:
Threatened decades of imprisonment can exert more behavioral pressure than coercive police interrogation. Normative distinctions between confessions and guilty pleas offered in the Supreme Court's jurisprudence, and the academic literature, are unsound. Ergo catastrophic trial penalties should be subject to the narrowest version of the due process doctrine barring involuntary confessions: When the gap between the trial and guilty plea sentences might induce an innocent person to plead guilty, the plea is unreliable and a violation of due process. The appropriate remedy is for the defense to enter the plea subject to a trial offer, i.e., a request to the court to set the case for trial on lesser charges than those in the prosecution's trial threat; or subject to special procedures to reduce the risk of erroneous conviction at trial, such as barring proof of the defendant's prior convictions. The Supreme Court's plea bargaining cases are not inconsistent with such a procedure, while current practice is inconsistent with the Supreme Court's coerced confessions jurisprudence.
Friday, January 08, 2016
SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!
The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:
Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States. A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.
Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release. The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.
The new case is Welch v. United States; it will be argued in March.
US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments
As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.
I say this because,
(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....
(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts. Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.
Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action. But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less). Kudos to the USSC!
UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:
At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.
In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.
Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?
Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.
This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today. Here is the basic backstory of this particular case:
When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause. After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.
While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges. The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit. However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.
I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.
A few prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- "The Circuit Split on Johnson Retroactivity"
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
- Updating the bubbling lower-court vagueness mess six months after Johnson
"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:
In this article, we have reviewed the legal issues surrounding restitution for child pornography victims. In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses. Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.
After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."
January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)
Thursday, January 07, 2016
Deep dive into notable state-level clemency developments
This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:
Barry Beach in Montana got one. Gabrielle Cecil in Louisville got one. And actor Robert Downey Jr. in California got one. They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.
Beach’s 100-year sentence for murder was shortened to time served, 30 years. Cecil’s life sentence for killing her abusive partner was forgiven. And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior. They’re the lucky ones.
Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.
But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars. “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”...
Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance. Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is. “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.
Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president. “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....
In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:
- New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
- Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
- Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.
Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”
Tuesday, January 05, 2016
"Reducing Crime Through Expungements"
The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:
Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him. This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record. Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.
Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies. Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record. On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time. Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.
Monday, January 04, 2016
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)
Sunday, January 03, 2016
Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air
This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors. Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:
A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon. Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count. Jurors likely would not be aware of the mandated sentence.
Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement. Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.
“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”
The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened. The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.
According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun. He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.
State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said. The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.
Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors. DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.
Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia. Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.
The jury that hears the case is not supposed to know Ratledge faces 120 years. Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.
This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial. Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.” Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.
Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer.... DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.
Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said. “He was trained to deal with it.”
Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.
But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.
"Taking Another Look at Second-Look Sentencing"
The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN. Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew. Here is the abstract:
A historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.
Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.
But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change. This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert. The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values. But the new sentencer does not represent the public against which the offense was committed. And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.
The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert. While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based. Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.
Saturday, January 02, 2016
Local prosecutor urges Wyoming legislature to "fish or cut bait" with capital punishment
As reported in this local AP piece, headlined "Casper prosecutor says Wyoming needs to reconsider death penalty," a district attorney in the Equality State is complaining that his state legislature seems unwilling to back the state's capital laws with sufficient capital. Here is the story:
A prosecutor who secured a death sentence against Dale Wayne Eaton for the murder of a woman nearly 30 years ago says the lingering appeal in the case shows the Wyoming Legislature must decide if it's willing to provide the resources necessary to handle capital punishment.
The call came from Natrona County District Attorney Mike Blonigen, who prosecuted Eaton in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana. For years, Eaton was the only man on death row in Wyoming. His death sentence was overturned in November 2014. "You keep going, and you tell yourself that this is about what the man actually did," Blonigen said.
"But it seems the further we get removed from what he actually did, and out from his trial, the less and less that seems to matter," Blonigen said of Eaton. "Instead, we're tied up in all this other stuff that has nothing to do with the truth or untruth of any of the allegations made, but have everything to do with the procedure."
Kimmell disappeared while driving across Wyoming and fishermen later found her body in the North Platte River. In 2002, DNA evidence linked Eaton to the case while he was in prison on unrelated charges.
The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public Defender's Office had tried to scrimp on expenses and failed to follow American Bar Association staffing recommendations on providing qualified lawyers, an investigator and a mitigation expert.
Johnson gave the state the choice of allowing Eaton to serve life in prison or seeking the death penalty against him at a new sentencing hearing with the requirement that the state appoint lawyers for him not associated with the Wyoming Public Defender's Office. Blonigen began pressing in state court to hold a new death penalty hearing for Eaton.
But Johnson ruled this summer that the state had failed to follow his order by not appointing new lawyers for Eaton fast enough. In his order last week, Johnson prohibited the state from holding a new death penalty hearing while Eaton appeals aspects of the order Johnson issued last year. Eaton's current legal team is asking a federal appeals court in Denver to rule that too much time has passed for Eaton to get a fair death penalty hearing.
Gov. Matt Mead's budget recommendations, released before Johnson's order, called for the Legislature to appropriate over $1 million for the coming two-year state funding cycle to pay for Eaton's defense in state court. Mead also is calling for $25,000 to study whether prosecutors and the Public Defender's Office are receiving adequate funding.
Wyoming last carried out the death penalty in 1992, when it executed convicted murderer Mark Hopkinson. Several other death sentences have been overturned on appeal since then on the grounds of ineffective legal representation from the Public Defender's Office....
Blonigen said Eaton's case underscores the need for the state to provide adequate support if it wants to keep the death penalty on the books. "You've got to have the resources and have the commitment to it to carry through with it," Blonigen said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things."
Wednesday, December 30, 2015
How can a sex offender prove he is no longer a threat ... three decades after molesting a child?
The question in the title of this post is prompted by this local article about a state court ruling from New Hampshire headlined "Judge rules convicted sex offender must remain on registry until he can prove he is no longer a threat." Here is the interesting backstory:
A Manchester sex offender convicted 28 years ago will remain a lifetime registrant unless and until he proves he is no longer a threat, which, at least for now, he can ask to do at any time, a judge in Concord has ruled. The decision, issued last week and distributed Monday by Merrimack County Superior Court, caps the latest phase in a years-long campaign by the man, identified by the court under the pseudonym John Doe, to become eligible for public housing.
Doe’s real name is Norman St. Hilaire. He has long pressed to be removed from the state’s public registry of sex offenders, arguing that his conviction predated its creation. More recently, though, he asked the court to table that question and instead recognize that a recent state Supreme Court decision effectively lifts his lifetime status -- a smaller change, but one that could be enough to secure him housing eligibility.
In his new ruling, Judge Richard McNamara quickly rejected the request, writing that the higher court’s decision allows St. Hilaire to change his status only if and when he proves he is no longer a threat. “If he never succeeds in showing that he is not a danger to the public, he must continue to register,” McNamara wrote. “It follows that the only accurate way to describe his status at the current time is that of a lifetime registrant.”
St. Hilaire is currently a Tier III “lifetime” offender, the state’s highest sex offender category. His attorneys had claimed he should no longer be classified as such because he now has the chance to petition to get off the registry, a privilege unavailable to Tier III offenders convicted after the registry’s creation in the early 1990s. Tier III offenders convicted today have no opportunities to get off the list.
St. Hilaire’s case was scheduled for an evidentiary hearing in November, but he backed out shortly before, citing his victim’s request to testify. She and victims advocates suspect he was worried she would easily derail the effort by describing the abuse and possibly disclosing new allegations (though the statute of limitations on new charges involving her has passed).
McNamara’s ruling was only a partial win for state prosecutors, who not only objected to St. Hilaire’s petition but also asked that he be barred from bringing another request for five years. Like the Supreme Court, McNamara deferred to the Legislature on that question, saying it’s their responsibility to set parameters for how frequent the reviews should be.
Several state lawmakers are proposing new parameters, and hearings on their legislation, sponsored by Republican Senate Majority Leader Jeb Bradley and two dozen others, are expected to begin next month. The bill prohibits offenders from getting off the list if they have been convicted of serious crimes since their original convictions. Among other things, it also requires that victims get the chance to address the court, and that offenders whose petitions have been denied wait five years before petitioning again.
Amanda Grady Sexton, director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence, said the proposed language mirrors the requirements in place for lower tiered offenders who want to be removed from the registry. Sexton called McNamara’s ruling “a big win for victims.”...
In arguing earlier this month for the five-year ban, Assistant Attorney General Dianne Martin said the victim, now in her 40s and living out of state, “had to go through preparation for this case, and she had to relive all the events that she suffered as a child.” She should not have to constantly wonder if and when St. Hilaire will bring another petition, Martin said.
Chapman countered that St. Hilaire, who is 66 and has physical disabilities, had no plans to request a hearing, but hoped to reserve the right to do so in case his physical condition deteriorates further. St. Hilaire has not been present for the court proceedings. He was arrested last month and charged with failure to register, a felony. Police have said he created a Facebook account but never reported it, as required. He is out on bail and was scheduled for an arraignment at the end of this month.
St. Hilaire was convicted three decades ago of molesting the woman when she was a young teen in Hooksett, once in 1983 at Lambert Park and again the next year at their home, where the woman’s mother and three other children also lived. He was placed on probation and ordered to attend sex offender counseling, which he did weekly for two years. In an interview last month, the victim said the abuse was far more pervasive than the convictions reflected. She said St. Hilaire sexually abused her numerous times over a decade, starting as a toddler and continuing into adolescence.
December 30, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (11)
Tuesday, December 29, 2015
Interesting Texas state sentencing realities surrounding the future sentencing of 'Affluenza' teen and his fugitive mother
I tend not to blog too much about sentencing stories that are already seemingly getting too much attention in the traditional media. Ergo, I have not recently posted about the fugitive status of Ethan Couch. Couch is the Texas teen who had 15-minutes of infamy in early 2014 when, after having killed four people in a drunken-driving crash, received a 10-year probation sentence from a juvenile judge who may have been influenced by a defense psychologist's statement that Couch suffered from "affluenza" as a rich kid whose parents did not set any limits on him. But now Couch has been caught while on the run in Mexico with his mother, and this new CNN article highlights some interesting sentence aspects concerning what he and his mother are facing under Texas law.
The CNN piece is headlined "'Affluenza' teen caught, but will he get off easy?", and here are excerpts that spotlight some Texas state sentencing details that strike me as now quite interesting:
Will Ethan Couch, the "affluenza" teen, get off lightly again?, Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years probation for a 2013 drunk driving crash that killed four people.
Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy.
As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday. The district attorney explained the dilemma she faces at a news conference Tuesday:
• Ethan Couch was sentenced as a juvenile and violated his probation as ordered by juvenile court system.
• Under Texas law, Couch, now 18, would be punished for his violation in the juvenile system.
• The maximum sentence that a juvenile judge can dish out for a violation of his juvenile probation is imprisonment in a juvenile facility until Couch turns 19, which is April 11, 2016.
• The DA wants to transfer Couch's sentence to adult court. But since this violation happened in the juvenile system, Couch effectively would start with a clean slate in the adult probation system. That is, the adult court judge could not punish Couch for violations he committed as a juvenile.
• At the time a judge reassesses Couch's probation in the adult system, he has the power to put Couch in adult jail for a maximum of 120 days.
The 120 days in jail won't please those who think Couch deserves worse, but as the facts stand now, it is what the law allows. If Couch ends up on adult probation, Wilson said, and violates it as an adult, he could face up to 40 years in jail. Couch could also find himself behind bars for longer if he is found to have committed any new crimes and is charged and convicted as an adult for those crimes.
Ethan Couch's mother, Tonya Couch, has been charged with hindering the apprehension of a juvenile, and if convicted, faces between 2 and 10 years in jail, Wilson said. It's tough to explain the legal maze that stands to benefit Ethan Couch in the form of a light punishment for violating his probation.
The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."...
Couch is wanted by authorities in Tarrant County, Texas, for allegedly violating his probation. His mother, Tonya, was listed by Texas authorities as a missing person after her son's disappearance, and the authorities said they believed she was assisting him.
A warrant was issued in mid-December for Couch to be taken into custody after his probation officer couldn't reach him. He appears to have dropped off the radar after a video emerged that allegedly showed him at a party where alcohol was being consumed, according to authorities. Couch had been ordered to stay away from drugs and alcohol for the duration of his sentence probation.
His sudden disappearance reignited controversy over his case, which attracted widespread attention after a psychologist testified that Couch, who was 16 at the time of the crash, suffered from "affluenza," describing him as a rich kid whose parents didn't set limits for him. His lawyers argued that his parents should share some of the blame for the crash.
Prosecutors had requested that Couch be sentenced to 20 years behind bars. The juvenile court judge's decision to put him on probation for 10 years instead of sending him to prison outraged victims' families It also prompted many observers to question the term "affluenza," which isn't recognized as a medical condition in any formal sense. G. Dick Miller, the psychologist who said the word at the trial, later said he wished he hadn't used it. And Couch's lawyers have criticized what they say is the news media's narrow focus on the term in relation to his case.
As some regular readers know, I have long been troubled by and long complained about what I perceive as unduly lenient sentences too often handed out for serious and repeat drunk driving offenses. For that reason (and others), this high-profile sentencing case has always annoyed me because it seemed to me it was more reflective of our society's general tendency to treat drunk driving offenders too leniently than reflective of a tendency to give special breaks to serious crimes committed by rich white kids with lenient parents (though I certainly believe the general impact and import of rich white privilege at sentencing also merits attention).
Prior related posts around Couch's initial sentencing:
- Texas tough means probation for teen who killed four and injured more while drunk driving?
- Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four
- NY Times debates "Sentencing and the 'Affluenza' Factor"
Monday, December 28, 2015
Defense argues veteran's mental problems should make him ineligible for Oregon death penalty
This interesting local article from Oregon reports on a notable and novel argument being made by defense attorneys for a defendant accused in a brutal group murder. The story is headlined "Lawyers cite client’s military service in arguing that death penalty should not be sentencing option if found guilty," and here are the interesting details:
Army veteran A.J. Nelson stands accused of playing a central role in a brutal Eugene murder that happened three years after his squad’s armored vehicle was destroyed by a roadside bomb during a combat tour in Afghanistan.
Nelson was badly hurt in the blast, and his attorneys say there’s a link between the mild traumatic brain injury he suffered and his alleged crimes. They are asking a judge to exclude the death penalty as a potential sentencing option in their client’s case due to his service-related injury. One of Nelson’s court-appointed lawyers, Laurie Bender of Portland, said in a telephone interview that she does not know of any prior capital case in which a judge has been asked to rule on a death penalty exclusion request made on behalf of a former soldier.
Nelson, now 25, is scheduled to go to trial in March. If he is convicted of aggravated murder in the slaying of Celestino Gutierrez Jr., prosecutors could ask a jury to sentence Nelson to death. Nelson was one of three people arrested and charged with kidnapping and killing Gutierrez, and then using his car to carry out an armed, takeover-style bank robbery in Mapleton in August 2012.
The plot’s mastermind, David Ray Taylor of Eugene, is now on Oregon’s death row after a jury convicted him in May 2014. The third defendant in the case, Mercedes Crabtree, is serving life in prison with the possibility of parole after 30 years. She pleaded guilty to the murder in 2013 and agreed to testify against both Nelson and Taylor.
Nelson’s lawyers said in a recent court filing that they intend to present evidence at trial of a mental disease or defect that interfered with their client’s ability to form the intent to commit the alleged crimes. In addition to the brain injury, the attorneys also assert Nelson has been diagnosed with post-traumatic stress disorder.
Those two issues change the way people see and react to the environment, can lead to other psychological problems and produce “a greater propensity for aberrant and criminal behavior,” Bender wrote in a Dec. 15 motion to exclude the death penalty in Nelson’s case. “Nelson’s service-related injuries and illness do not exonerate him of the charged offenses but mitigate his culpability and the state’s standing to execute him,” Bender wrote...
The Dec. 15 filing includes copies of awards and commendations Nelson received as a result of his military service. They include the Purple Heart, given to soldiers who are injured or killed while serving.... Nelson’s lawyers say sentencing a war veteran with PTSD to death is unconstitutional, and amounts to cruel and unusual punishment under the Eighth Amendment. Veterans, the attorneys argue, deserve categorical death-penalty exclusions similar to those given to juvenile offenders and people with intellectual disabilities....
According to evidence presented at Taylor’s trial, Taylor came up with a plan to kill a stranger and take that person’s vehicle for use in a bank robbery.... Crabtree then obtained a ride from Gutierrez to Taylor’s nearby home. Gutierrez was slain at the house, where Taylor, now 60, and Nelson are said to have dismembered his body. Crabtree, who was 18 at the time of the incident, testified during Taylor’s trial that Nelson — at Taylor’s direction — bound Gutierrez with electrical wire and a belt, pushed a crossbow bolt through one of the victim’s ears and choked him.
After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a metal chain around Gutierrez’s neck and pulled on it until the victim stopped breathing, Crabtree told the jury. Crabtree said Nelson went into a brief seizure as he and Taylor dismembered the body, and came out of it confused about what he had done.
It is well-established constitutional law that defendants can present mitigating evidence of all sorts, including evidence of mental battle scars of war, to argue to a jury not to impose a death sentence. But here it seems defense attorneys are pressing for a new categorical ban on the death penaty for veterans whose service-related injuries may have played a role in their capital crimes.
Some (of many) prior related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Should Veterans With PTSD Be Exempt From the Death Penalty?"
- "Neuroscience, PTSD, and Sentencing Mitigation"
- Should there be a death penalty exemption for combat veterans with PTSD?
- "Military Veterans, Culpability, and Blame"
- Should honoring vets and PTSD call for commuting a death sentence?
- "Battle Scars: Military Veterans and the Death Penalty"
Thursday, December 24, 2015
Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?
The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.
Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction. I will provide here an exceprt from the start and end of Judge Millett's opinion:
This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari). The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.” Panel Op. 2. Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” Panel Op. 3. The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.
Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.
In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting). The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty. But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....
While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc. That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.” Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue. Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.
Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."
December 24, 2015 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)
Wednesday, December 23, 2015
"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"
The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:
In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.
Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.
"Reforming the Nation’s Criminal Justice System: The Impact of 2015 and Prospects for 2016"
The title of this post is the title of this notable report recently produced by the U.S. Justice Action Network. Here are excerpts on how it starts and ends:
Over the past year, criminal justice reform has been propelled to the forefront of national conversation, and on the minds of millions of Americans. For years, advocates have worked tirelessly to chart a path forward to overhaul a justice system that has become bloated, unsustainable and inefficient. But they knew that, to advance meaningful solutions to reduce the prison population and expand opportunities for formerly incarcerated people, that national momentum and widespread support would be needed to spur action.
Fortunately for advocates of criminal justice reform, 2015 proved to be the year that would ultimately place reform within the nation’s reach. And because of the progress made this year, prospects for achievable, comprehensive reform in 2016 are appearing considerable....
The collective efforts witnessed throughout 2015, at the state and federal levels, certainly made it the most significant in the fight for reform. For the first time, the nation at large took an active, invested role in the conversation — no longer was justice reform a topic relegated to policy conferences, legislative hearing rooms and opinion pages — it was a debate being waged in living rooms, at dinner tables, in schools and churches, and by people of every political stripe, in every age range, in every community across the country. Below is a look ahead to some of next year’s key moments, issues and actions that could impact prospects for reform in 2016, and which will ultimately determine whether or not 2016 will be the year that reforms were achieved.
Narrowing window of opportunity means the first few months are key: With the 2016 election cycle kicking into high gear, it will be crucial for federal lawmakers and national advocates for reform to make progress on reforms as early as possible in the new year. Momentum and support for reform has reached historically high levels, helping to create a political and legislative environment ripe for reform.
Law enforcement: Prominent law enforcement leaders are standing up and joining the push for action, and this widespread law enforcement advocacy effort will be crucial in the coming year to continue advancing criminal justice reforms that protect public safety and create better outcomes for all.
Congressional leadership: Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul Ryan (R-WI) have both signaled that reforming the justice system is an important priority. In November, both McConnell and Ryan made optimistic statements signaling the bills could be included on a short list of priorities for congressional action, but stopped short of committing to floor time.
2016 election cycle: The 2016 presidential election cycle has for the first time made criminal justice reform a hot-button issue being discussed on the campaign trail by presidential candidates. Candidates on both sides of the aisle have shared proposed policies to reform the system, and have shared differing perspectives on the state of justice reform. As the campaigns continue marching forward, it is anticipated that criminal justice reform will continue making appearances in stump speeches, rallies, and interviews by those running for the White House.
45th anniversary of War on Drugs: The War on Drugs is sourced with both increasing attention on the scourge of drugs and substance abuse issues, but also amplifying the use of mandatory minimums and other one-size-fits-all criminal justice policies for lower-level drug issues. In June, the U.S. will mark the 45th anniversary of the War on Drugs, and will surely see calls for federal lawmakers to continue to reconsider current U.S. drug policies and their impact on incarceration rates, and also more effective ways of addressing substance abuse issues that impact communities everywhere.
Tuesday, December 22, 2015
"To forgive prisoners is divine — or as close as government gets"
The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency." I recommend the lengthy piece in full, and here are excerpts:
President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news. So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states). But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency. Here is why and how....
At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate. Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.
Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history. Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value. Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.
As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson. But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....
So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state. Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning. Alas, here too the general trend has been towards greater stinginess with clemency.
Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana. Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century. Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications. Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.
The barriers to mercy are dug deeply into American politics and intellectual culture. At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims.... (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)
But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency. At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.” Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...
U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....
Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice. The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....
Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.
What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.
To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct. But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract. Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy. To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.
The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s.... How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.
December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Monday, December 21, 2015
Astute review of factors killing the death penalty ... with a questionable final assessment
The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out." I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement. First, here are extended excerpts along with the closing paragraph:
Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976. A ghoulish web page lists the inmates admitted to Texas’s death row. Only two arrived in 2015, down from 11 the previous year.
There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment. Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped. Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer. Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.
The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong. Fairly soon, someone will be the last person to be executed in America. The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects. So, whodunnit? Who killed the death penalty?
Where politicians follow, voters often lead. Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning. Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....
The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences]. So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment. Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....
Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute. But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....
To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer. Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....
Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry. Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....
Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution). Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls. The death penalty’s coup de grace may come in the form of an empty vial.
Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all. In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them). He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.
Cue much lawyerly soothsaying about that prospect. Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors. Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania. The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.) These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.
Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions. As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society. In the final verdict, America’s death penalty has killed itself.
This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise. But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States. Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California. Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.
Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US. If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon. But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."
It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence. Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values. And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.
Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison
As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:
Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.
Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.
The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.
It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.
“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”
The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.
Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.
And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.
The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here: Download Opinion Granting Injunction
December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Sunday, December 20, 2015
Michigan Supreme Court takes up punishing questions about lifetime sex offender registration
As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago." Here is more about the case and context:
The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.
In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”
The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.
The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:
The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)
Friday, December 18, 2015
Updating the bubbling lower-court vagueness mess six months after Johnson
Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States." Here is how it gets started:
Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive. The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.
In the last four months, that circuit split has deepened. And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.” So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.
More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive. The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause. And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.
In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive. I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.
In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague. There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced. The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.
Thursday, December 17, 2015
Justice Department urges SCOTUS to refuse to take up original suit about marijuana brought by neighbor states against Colorado
As discussed here by Rob Mikos over at my Marijuana Law, Policy & Reform blog, late yesterday the US Solicitor General filed an amicus brief in the Supreme Court concerning the suit brought by Nebraska and Oklahoma against Colorado seeking various kinds of legal relief in the wake of Colorado's legalization of recreational marijuana. Rob provides this basic background and summary of the filing:
Per its practice, SCOTUS had requested the SG’s input. The brief can be found via this link. (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.) For earlier postings on this case, see here, here and here.
In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so. Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.
Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.
As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.
I am hopeful I will have time in the coming days to closely analyze this SG amicus brief and to post some additional commentary at the Marijuana Law, Policy & Reform blog or here. In the meantime, here is how the Discussion section of the SG's brief gets started:
The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction. Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.
"Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?"
The title of this post is the title of this notable, lengthy commentary by Steve Vladeck over at PrawfsBlawg, which gets started this way:
I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split — given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016. And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications — perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).
In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two. As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock — and to not support efforts to have the Supreme Court so hold before next June's deadline.
A few prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed
As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform. But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."
The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.
In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases. Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts. Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes.
This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures." Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.
Tuesday, December 15, 2015
How many fundamental rights in the Bill of Rights can be uniquely regulated for adults under 21?
The answer to the question in the title of this post would seem to be "at least one" in light of an interesting ruling today by the Seventh Circuit in Horsley v. Trame, No. No. 14-2846 (7th Cir. Dec. 15, 2015) (available here). Here is the starting, ending and some in-between key passages from the panel decision:
Tempest Horsley’s application to possess an Illinois Firearm Owner’s Identification Card, commonly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does not impose a categorical ban on firearm possession for 18-to- 20-year-olds whose parents do not consent. Rather, when an applicant cannot obtain a parent or guardian signature, he or she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court....
Horsley ... maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms. We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat’l Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.... Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the FOID Card Act does not in fact ban persons under 21 from having firearms without parent or guardian consent. Having a parent or guardian signature may speed up the process, but it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available can appeal to the Director of the Illinois State Police [and any] denial is subject to judicial review....
The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother’s life. Id. at 74....
The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public safety is supported by studies and data regarding persons under 21 and violent and gun crimes.... Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state’s compelling interest in public safety....
We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest. Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership. The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event. If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment — the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional.
NY Times debates " What Age Should Young Criminals Be Tried as Adults?"
The Room for Debate section of the New York Times has this new set of notable commentaries discussing the appropriate age for when an offender should (or should not be) brought into adult court for trial and sentencing. Here is the section's set up:
The governor of Connecticut has proposed raising the age juveniles can be tried as adults to 21 in attempts to keep more young people out of cycles of incarceration. Michigan, one of few states that still charge 17-year-olds as adults, is also considering raising the age for eligibility of juvenile status to 18. Is this a good idea? What age is appropriate for young law-breakers to be tried as adults?
Here are the contributions, with links via the commentary titles:
"Raise the Minimum Age to 21" by Vincent Schiraldi
"There Is No One-Size-Fits-All Age Limit" by Charles Stimson
"No Younger Than 18" by Carmen Daugherty
"Raising the Age Doesn’t Lower Juvenile Crime" by Charles Loeffler
Examining the crimmigration connections between sentencing and deportation
An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law. In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:
Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.
Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression. In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability. But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction.
Monday, December 14, 2015
Reviewing and reflecting on persistent problems with the federal clemency process
The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks. But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:
As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.
“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”
As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.
“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.
And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....
But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out. Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”
“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.
Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.
Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department. “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”
Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”
But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.
Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.
Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”
Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”
No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.
Sunday, December 13, 2015
Encouraging DUI alternative sentencing story from South Dakota
The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:
Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....
South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].
The program offers those accused or convicted of an alcohol-related crime an alternative to jail. The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.
It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws. "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began. The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.
An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.
Experts say incentive grants are an effective way to encourage states. "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.
South Dakota started the practice in 2005. Participants come to a site each morning and evening to blow into an alcohol breath test. Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles. Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.
North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states. And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.
Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification
A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.
Saturday, December 12, 2015
"The Armed Career Criminal Act: Imprecise, Indeterminate, and Unconstitutional"
The title of this post is the title of this timely new piece authored by Michael Schearer and available via SSRN. Here is the abstract:
The Armed Career Criminal Act provides a mandatory minimum fifteen-year sentence enhancement for felons possessing a firearm who have previously been convicted three times of a “violent felony” or a “serious drug offense.” Despite this seemingly clear mandate, the statute has been embroiled in controversy for decades as judges struggle to determine what predicate crimes meet this standard. The culmination of this battle resulted in the invalidation of the ACCA’s “residual clause” when the Supreme Court found that the clause violated due process in Johnson v. United States. Nonetheless, the remaining provisions of the ACCA are still problematic.
For example, although burglary is a specifically enumerated offense that constitutes a violent felony, burglary convictions in some states have been held to be violent felonies while burglary convictions in other states have not. Likewise, offenses involving “the use, attempted use, or threatened use of physical force against the person of another” have mired the courts in similar difficulties in determining whether the particular offensive qualifies as violent felony. Perhaps most troublesome, a finding of juvenile delinquency can be considered a criminal conviction that subjects an individual to ACCA enhancement in a subsequent adult proceeding, despite the fact that juveniles do not have the right to a jury trial. This paper argues that the ACCA is imprecise, indeterminate, and insusceptible of principled and predictable interpretation. Absent a wholesale modification by Congress, the substantive provisions of the ACCA examined in this paper ought to be held by the courts to be unconstitutional because they deprive defendants of due process.
Friday, December 11, 2015
SCOTUS grants cert on permissible practices for police roadside tests and for prisoner litigation
As reported in this SCOTUSblog posting by Lyle Denniston, the Supreme Court granted certiorari review on four matters this afternoon including a set of cases "that could have a nationwide effect on the roadside actions of police officers." Here are the details:
[T]he Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.
The Court also granted review of three other cases ... [including one involving] a dispute over whether a prison inmate is excused from attempting administrative remedies for a grievance if the prisoner believed, wrongly, that he had already done so (Ross v. Blake).
The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver. The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.
In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration. It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving. In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving. The two cases involve either a blood or breath test.
Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision. And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling. The Supreme Court, at its private Conference on Friday, had thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.
Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers
As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer." Here is more:
“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.
“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.
The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”
As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.
Thursday, December 10, 2015
Shouldn't the Black Lives Matter movement focus a lot more on ensuring black voters are able to matter?
The question in the title of this post reflects my reaction to two stories I came across this morning. First, as reported here, readers of The Crime Report in the site's "fifth annual survey of the most significant criminal justice news stories and developments ... [chose] the growing political profile of Black Lives Matter and related organizations as the major development of 2015." Second, this new Intercept article reports that within "Florida’s black population, the rate of disenfranchisement is high, with nearly a quarter of African-Americans prohibited from voting." This second piece is headlined "Thanks to Republicans, Nearly a Quarter of Florida's Black Citizens Can't Vote," and here is an excerpt:
Nationwide, nearly 6 million Americans are barred from voting due to felony convictions. Although most states restrict the voting rights of imprisoned felons, Iowa currently is the only one that joins Florida in imposing a lifelong disenfranchisement on ex-felons. Until three weeks ago, Kentucky also had such a ban, but on the Tuesday before Thanksgiving the state’s outgoing Democratic governor issued an executive order restoring the voting rights of 140,000 nonviolent ex-felons in the state. The incoming Republican governor has signaled that he may uphold the order.
Meanwhile, the scale of the problem in Florida appears to be growing. The 1.5 million figure dates from 2010; when Republican Gov. Rick Scott took office in 2011, he immediately rolled back a policy of his predecessor, Charlie Crist, who automatically restored the rights of many felony offenders who had completed their sentences. Scott introduced new rules requiring that people convicted of nonviolent felonies wait five years before they can apply to have their civil rights restored; those convicted of violent and certain more serious felonies must wait seven years to apply. Under Crist, tens of thousands of felons, on average, won back their right to vote each year. So far, Gov. Scott has restored the rights of just 1,866 ex-felons, while tens of thousands of former inmates are released each year, stripped of their voting rights. As the Scott administration has choked off the one existing channel for former felons seeking suffrage, anecdotal evidence suggests that wait times are getting longer for those petitioning the governor to restore their civil rights. ...
More than 50 years after Congress passed the Voting Rights Act of 1965, Florida is still a place where in a typical public setting — a grocery store or a city block — a sizable portion of the citizens you walk among are likely to be quietly enduring the state’s lifelong disenfranchisement. In neighborhoods like heavily black Parramore, an even larger number of residents will be unable to vote. And Walker says that in his congregation, those who can vote are outnumbered by those who cannot.
“We’ve had older clients call us and say I want to be able to vote again before I die,” said Mathew Higbee, the founding partner of Higbee & Associates, a law firm that helps ex-felons restore their civil rights. “And we say, ‘Right now it’s going to be a six- to 10-year wait before they’ll even look at it,’ and the person says: ‘I’m not sure I’m going to live that long so I’m not even going to try.’”
The Scott administration has asserted that the governor uses the right to vote as an incentive to encourage former offenders to stay out of trouble. “Gov. Scott feels that convicted felons need to have an opportunity to show they can be law-abiding members of society before those rights are restored,” a spokesperson said during the 2012 election season. Yet ex-felons who have stayed clear of the law for more than a decade told me that their petitions to Florida’s clemency board have gone unanswered or have become stalled in a bewildering bureaucracy plagued with a backlog of nearly 11,000 pending applications for civil rights restoration. So far this year, the state has approved only 315 applications. The former felons I spoke with hold little faith in the clemency process. And, perhaps more than anything else, they express a feeling of having been being forgotten by virtually every element of political life in America. (Gov. Scott’s office did not respond to a list of emailed questions.)
I view the 2008 and 2012 election results as dramatic proof that minority populations garner significant political power and can have maximum political and social impact when they turn out in large numbers to vote. As the title of this post suggests, I think the BLM movemen could and would have the most long-term political and social impact if it were to aggressively challenge felon disenfranchisement laws and other formal and informal barriers to people of color voting in very large numbers in every election.
Tuesday, December 08, 2015
"The Path to Exoneration"
The title of this post is the title of this notable new paper available via SSRN authored by Jon Gould and Richard Leo. Here is the abstract:
This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence. The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.
This study leads to several findings. First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence. Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent. Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations. Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.
After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.
Kentucky gov issues hundreds of pardons and a few commutations on way out of office
As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence." Here is more:
Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”
Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.
Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...
Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”
Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.
“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”
"Why Has The Death Penalty Grown Increasingly Rare?"
The title of this post is the headline of this extended NPR piece reported by Nina Totenberg. (She also has this companion shorter piece headlined "As Supreme Court Upholds Death Penalty, Number Of Executions Plummets.") Here is how the big segment gets started:
The last execution scheduled in the U.S. for the year is set for Tuesday in Georgia. But capital punishment has gown rare in America, to the point of near extinction.
Even though polls show that 60 percent of the public still supports the death penalty, and even though the Supreme Court has repeatedly upheld it as constitutional, the number of executions this year so far is almost the same as the number of fatalities from lightning strikes — 27 executions versus 26 deaths by lightning.
It's an ironic statistic. When the Supreme Court briefly banned the death penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, capital punishment was being imposed so randomly and "freakishly" that it was like being "struck by lightning." Four years later, the court would revive the death penalty, but with new limitations aimed at reserving it for the so-called worst of the worst.
Few could have imagined the trajectory the death penalty would follow in the years after. The number of executions soared in the 1990s — hitting a high of 98 in 1999 and ultimately totaling more than 1,400 — but tailed off dramatically after 2000. With just one more execution set for this year, the current year's total will be the smallest number in almost 25 years.
While the death penalty remains the law in 31 states, that figure is misleading. In many of the 31, capital punishment has largely fallen into disuse. In four states, the governor has put a moratorium on the death penalty, and in 17 there's an executive or judicial hold on executions because of botched procedures or problems in obtaining drugs that courts and legislatures have approved for lethal injection.
Monday, December 07, 2015
"Are debtors' prisons returning?"
The title of this post is the headline of this recent lengthy CNN commentary authored by Van Jones and Jessica Jackson. Here are excerpts:
Debtors' prison is supposed to be illegal in the United States. But in too many American cities, it has made a shocking return. This [past] week, a bipartisan group of leaders, and a few A-list celebrities, gathered at the White House to do something about it.
The problem: Faced with ballooning costs of America's massive incarceration industry, local jurisdictions have started billing people for time they spend behind bars. They are also charging them for electronic supervision services. Not to mention DNA collection, juries and constitutionally mandated public defenders.
The trouble here is obvious: Recently incarcerated people often do not have jobs. Therefore, they cannot possibly keep up with an increasingly aggressive list of fees and fines.
So believe it or not: Cities are throwing them BACK into jail -- for not being able to pay! From Detroit to Dallas, America's criminal justice system is trapping poor people in a perpetual cycle of prisons and poverty....
On top of the stated fees and fines, many jurisdictions are adopting practices employed by shady payday lenders, not public safety agencies. For example, Washington state charges a 12% interest rate on all its criminal debt. Florida adds a 40% fee that goes into the pockets of a private collections agency. And in Arizona, an 83% surcharge turns a $500 fee into a $915 bill. A portion of those proceeds go to finance electoral campaigns, creating a strong incentive to preserve the status quo.
One study revealed that most people with a felony conviction can expect to be saddled with an average $11,000 in debt. In total, about 10 million Americans collectively owe more than $50 billion in outstanding fines and fees. Repaying this debt would be challenging for the average American family, half of whom would have trouble finding $400 on short notice. But for those already struggling to get on their feet after prison, the debt from fees and fines often carry carries with it an air of impossibility.
The current system has dire consequences for millions of Americans that can be permanently debilitating and perpetuates a cycle of poverty and incarceration. Failure to pay fines can result in lost income, depressed credit ratings, housing instability, suspended drivers' licenses, arrest warrants, loss of Social Security benefits or further incarceration. These consequences can permanently affect an individual's life and reduce the ability ever to get his or her life back on track.
The system is not supposed to work this way. A Supreme Court ruling in 1983 prohibited putting people in prison for failure to pay their fines and fees without an indigency hearing. And yet at least 15 states have found ways to ignore this mandate. They have made this a standard practice....
The Sunlight Foundation is supporting the collection of data so we can understand the scope of the problem and how we can better address the issue. The Laura and John Arnold Foundation is funding a comprehensive research and litigation-based approach to reform. And #cut50 is dedicated to highlighting this injustice and amplifying leadership from around the country.
Together, we can roll back these policies that ultimately have little to do with public safety. Our challenge strikes at the heart of our criminal justice system: Are we a nation of second chances, or will we sit by and watch a perpetual punishment machine run wild? Let us ensure our elected representatives and government agencies live up to the highest values of our society.
This ABC News column authored by Lz Ganderson, headlined "To Be Poor, Black and Jailed," discusses similar issues and concerns.
Sunday, December 06, 2015
Supreme Court takes up Montana case to resolve applicability of Sixth Amendment speedy trial right to sentencing
The major matter among the cases that the Supreme Court decided to take up on Friday concerns the authority of the Puerto Rican government to deal with its debt crisis. But as this post from Lyle Denniston at SCOTUSblog notes, the undercard cert grants are still noteworthy:
The Court granted review in three other cases on Friday, involving: the application of the constitutional right to a speedy trial to a follow-up sentencing proceeding (Betterman v. Montana); a definition of when a government contractor has filed false reimbursement claims under the False Claims Act (questions 2 and 3 in Universal Health Services v. United States ex rel. Escobar); and a claim for attorney’s fees for an employer when the Equal Employment Opportunity Commission does not carry out its assigned duties before a lawsuit is filed (CRST Van Expedited v. EEOC). Those cases, too, are likely to be argued in March.
The cert petition in Betterman is available at this link, and here is how it presents the question:
Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.
This question has divided lower courts, but I am not so sure having it answered either way will really impact sentencing practices much. Defendants can, and regularly do, waive and forfeit Sixth Amendment speedy trial rights so having such a right apply at sentencing may not practically lead to much more than just some more formal waiver practices. Conversely, defendants surely have some residual Fifth Amendment Due Process right not to suffer too much prejudice from excessive delays before sentencing, so defendant already have and will continue to have some procedural protections in this arena even without the Sixth Amendment getting involved.
That all said, it is always exciting and interesting when SCOTUS takes up a constitutional sentencing issue that has split both state and federal courts. And there could be some "sleeper" elements emerging in this case through briefing and argument that could make it a bigger deal. And, if nothing else, the case has the benefit of a cool party name that will keep me humming one of my (many) favorite Pearl Jam songs.
Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
The question in the title of this post is prompted by this recent Washington Post report, headlined "Obama convenes meeting on criminal justice reform to buoy bipartisanship," discussing a meeting Prez Obama convened with congressional leaders to talk about how to turn reform bills into new sentencing laws. Here the details:
President Obama convened a meeting of more than a dozen congressional Republicans and Democrats Thursday, in an effort to bolster a fragile bipartisan coalition working to reform the criminal justice system.
The House and Senate have been working to craft legislation to reduce mandatory minimum sentences for drug offenders, as well as to revamp aspects of federal incarceration. The Senate Judiciary Committee passed a comprehensive bill on a bipartisan 15-5 vote in October; the House Judiciary Committee has passed five separate measures by voice vote in recent weeks.
But there are a few major differences between the two chambers’ approaches. Most significantly, one of the House bills — the Criminal Code Improvement Act — would require prosecutors in cases as wide-ranging as food tainting and corporate pollution to prove that defendants “knew, or had reason to believe, the conduct was unlawful,” otherwise known as “mens rea.”
That measure has angered many Democrats, who argue that it could block criminal prosecution of some corporate entities — including those owned by Koch Industries, which has helped mobilize conservative support for the overall reform effort. Obama specifically asked lawmakers to remove the provision, according to individuals familiar with the meeting, though House Republicans argued that it was a critical component for conservatives.
“We believe that invites a lot of controversy and delay into our agreement, and the House feels just the opposite,” said Senate Minority Whip Richard J. Durbin (D-Ill.), who attended the White House meeting and co-authored the Senate criminal justice bill.
Sen. John Cornyn (R-Tex.), another co-author of the bill, said that while “nothing was decided” in the more than hour-and-a-half session, he was “very optimistic” after participating in it. “I think it was all a very positive, bipartisan, bicameral, executive, legislative meeting,” Cornyn said, adding that although “there was not consensus” on that issue, there might be a way to work it out in a conference between the two chambers. “But I think part of the message was, ‘Let’s take the things where there is consensus, get that done.’ ”
A spokeswoman for House Judiciary Committee Chairman Bob Goodlatte (R-Va.) declined to comment on the meeting. She noted that the House panel has passed bills on issues including modifying sentencing guidelines and eliminating statutes in the U.S. Code that subject violators to criminal penalties for trivial conduct. The committee will take up measures on prisons, civil asset forfeiture, and criminal procedures and policing in the coming weeks, she added.
Durbin said “we have a good chance” of passing legislation in early 2016, so lawmakers can work out their differences “and send it to the president before midpoint of next year.”
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who helped craft the Senate bill and also met with the president, said the meeting was less about “the path forward” than how to get the two competing proposals brought up for floor votes in the House and Senate.
Obama also pressed for specific numbers on how many individuals would benefit overall from the two proposals, people familiar with the meeting said, because the proposals introduce new sentences even as they reduce some mandatory minimums.
Senator Durbin's comments reinforce my understand that there is a good chance that the full House and Senate will likely vote in January or February on the various reform bills that have already passed the Judiciary Committees. Such votes would pave the way for harmonizing efforts on the bills and perhaps enactment sometime in Spring 2016. I think the commnts coming after this meanign from not only Senator Durbin but also Senator Cronyn lead me to have continued (tempered) optimism that this will get done in some form before Prez Obama leaves the Oval Office.
That all said, the dispute over menas rea reform could throw a wrench into this process, as could various other political developments. Especially if the legislative process drags into the summer, I think whomever emerges as a GOP leader through the primary season could end up having an impact on the sentencing reform debate. In addition, as both the title and contents of this post suggests, Prez Obama also is a critical and complicated figure in all this. Cajoling Congress effectively could help keep the legislative process, but too much advocacy or criticism on sentencing issues coming from the White House could upset an already delicate political balance in this arena.
Saturday, December 05, 2015
Have conservatives been "manipulated" and "duped" by abolitionists to oppose the death penalty?
The question in the title of this post is prompted by statements in the final paragraph of this lengthy American Thinker commentary authored Aaron J. Veselenak and headlined "Some Reading for Conservatives Who Oppose the Death Penalty." I recommend the full piece, and here is how it starts and ends:
In recent years, opponents of capital punishment have leveled key criticisms against conservatives, claiming major hypocrisy in their continued approval of society's most serious criminal sanction. One claim is that conservative support for the death penalty violates the most central tenet of conservatism — that of limited government. How can conservatives, they ask, in their suspicion of and disdain for large, powerful government, advocate use of the greatest governmental power of all, the taking of life? Contradiction — indeed, hypocrisy — is said to exist.
This charge is faulty, even bogus. Unfortunately, this and other equally faulty charges have resonated with certain members of the conservative movement, among them state and federal lawmakers.
Why is the above claim so faulty, in fact lacking of substance? The answer lies in the fact that conservatives are not anarchists. Yes, conservatives do believe in very limited size and power of government. However, that does not mean they abandon the most basic functions of government, chief among them protection of the people through military and police powers. Or a court and penal system to further provide safety and administer justice....
Conservatives jumping on the anti-death penalty bandwagon in recent years need to rethink their position. They have been manipulated — duped by the seemingly sound and logical statements of death penalty opponents. Deeper reflection demonstrates these claims to be very shallow and without merit.
Perhaps because I hang out and interact with a number of pretty bright people with an array of views on an array of criminal justice topics, I am disinclined to believe that conservatives who oppose the death penalty are being convinced by "very shallow" claims or are subject to being manipulated or duped by death penalty opponents. Nor do I think one need to be drawn in by appeals to anarchy or libertarianism to have conservative-based concerns about the operation of modern death penalty in the United States.
Rather, I think one readily can embrace a strong belief/commitment to a government focused on the "protection of the people through military and police powers [and] a court and penal system to further provide safety and administer justice" while still voicing considerable disaffinity for the modern death penalty. This disaffinity would be based on the (seemingly conservative) perspective that the governments often, even when trying really hard to be effective in its core functions, far too often end up doing more harm than good (and at an excessive cost to taxpayers). Even apart from concerns about government dysfunction showcases by wrongful convictions (which I assume trouble conservatives as much if not more than liberals), the governmental mess we have recently seen in Oklahoma with the mixing up of execution drugs or states previously relying on unqualified executioners or even evidence of racial disparities in capitl application could all seemingly provide a principled basis for principled conservatives to conclude the government (especially state governments) ought not still be in the business of killing its killers.
Friday, December 04, 2015
"The Injustice of the Plea-Bargain System"
The title of this post is the headline of this op-ed authored by Lucian Dervan and appearing in today's Wall Street Journal. Here are excerpts:
The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system. With incarceration rates in the U.S. five to 10 times higher than in Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes. Yet none directly addresses plea bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty....
Even in cases without mandatory sentences, it is common for sentences handed down after trial to be far more severe than those offered to induce guilty pleas. This “trial penalty” is weighed by thousands of defendants each day when considering whether to accept a plea offer.
A 2013 Human Rights Watch study found that the average federal drug sentence for defendants who proceeded to trial in 2012 was three times longer — an increase of 10 years — than for defendants who pleaded guilty. In that study, a federal judge in New York described the sentences defendants face if they reject plea offers as “so excessively severe, they take your breath away.” Not surprisingly, the great majority of convictions come from guilty pleas. According to the U.S. Sentencing Commission, over 97% of convictions in the federal system arise from guilty pleas; state systems aren’t far behind at about 95%.
There are numerous documented cases of innocent defendants pleading guilty, including well-known examples such as Brian Banks. In 2002, at the age of 17, Mr. Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of seven years in prison. If he rejected the offer and lost at trial, he faced 40 years to life in prison. He took the deal and falsely confessed. In 2012, after definitive evidence of his innocence came to light, a California court reversed the conviction.
The Supreme Court established the constitutionality of plea bargaining in Brady v. United States (1970). But the court warned that it would have “serious doubts” if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.” Sadly, the trial penalty has done just that.
Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret
As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:
Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.
In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.
In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....
The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.
Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.
The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.
Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....
Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.
Arkansas last executed an inmate in 2005.
Thursday, December 03, 2015
"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"
The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:
The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed. The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....
There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely. David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements. And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”
851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence. What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...
Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”
There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions. If prosecutors so decided, they would trigger life without parole upon conviction.
On March 5, 2013, prosecutors offered Kupa a plea deal. The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months. With good time credits, Kupa could serve seven years and ten months, Gleeson wrote. But Kupa had just one day to think the agreement over, and he didn’t accept it. And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.
December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Fourth Circuit to consider en banc whether it can consider new claims from federal prisoner with wrong old LWOP sentence in Surratt
In this post a few months ago, I noted the lengthy split Fourth Circuit panel ruling in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here), in which a majority of the panel decided it could not consider a challenge to a wrongful LWOP sentence for a federal drug defendant. As the majority put it: "We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below."
Now, thanks to a helpful reader, I have learned that yesterday the full Fourth Circuit decided via this order to now hear the Surratt case en banc. For anyone interested in federal habeas law, this now become a must-watch case.
Federal statutory sentencing reform not going to happen until 2016 ... if at all
This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:
It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.
"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.
Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.
The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....
Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....
While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.
Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"
While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."
Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."
Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”
I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.
December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)