Sunday, January 26, 2014
"Sex offender fights registry by registering his registerers"
The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person. Here are excerpts:
If nothing else, Dennis Sobin is not your typical ex-con.
At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .
But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.
Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.
“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”
Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”
Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.
Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”
Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.
Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...
Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.
“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”
January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
Friday, January 24, 2014
How could AG Eric Holder justify refusing to authorize the death penalty process for Boston Marathon bomber, Dzhokhar Tsarnaev?
The question in the title of this post is my reaction to this new New York Times article headlined "U.S. Weighs Pursuit of Death Penalty for Suspect in Boston Bombing." I really mean this question to be more of a friendly suggestion and challenge to readers who are strongly opposed to the death penalty in all cases, in part because I suspect AG Holder would have a hard time developing a sound (and politically effective) public justification for not starting the federal death penalty process. So, abolitionists, use the comments to ghost write a speech for AG Holder to justify not authorizing a capital prosecution in this case. Here is the start of the NY Times article to provide for all the essential background for this question and challenge:
Since the federal death penalty was reinstated, in 1988, attorneys general have authorized it for about 500 defendants. By the end of the month there may be yet another: the accused Boston Marathon bomber, Dzhokhar Tsarnaev.
Attorney General Eric H. Holder Jr. must decide by Jan. 31 whether to pursue the death penalty, but even if he does so, it is far from certain that Mr. Tsarnaev would actually face execution. Of those 500 defendants, only three have been executed, the last one a decade ago, according to the Federal Death Penalty Resource Counsel.
Still, Mr. Holder’s job is not to weigh the probabilities of Mr. Tsarnaev’s execution. Instead, he must decide whether the aggravating factors that might justify death in this case, like the indiscriminate killing and maiming of innocent people, outweigh any mitigating factors, such as the possibility that Mr. Tsarnaev, who was 19 at the time, was under the sway of his older brother.
While Mr. Holder has said he does not personally support the death penalty, he has authorized its use several times, and many legal experts expect he will do so again in this case.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
Notable early Massachusetts legislative response to elimination of juve LWOP
This Boston Globe article, headlined "Bill seeks at least 35 years for young killers," reports on a proposed statutory response to the recent ruling by the Supreme Judicial Court of Massachusetts (discussed here) which declared that that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Here are the basics:
A group of state lawmakers is proposing legislation that would require juvenile murderers to serve at least 35 years in prison before being eligible for parole, in direct response to a Supreme Judicial Court ruling that struck down life sentences without the possibility of parole for young killers.
The bipartisan bill would also require the state Parole Board, in deciding whether to grant early release, to consider whether a teenager convicted of murder had the maturity and sense of responsibility of an adult when carrying out the crime.
The bill was based on the recommendation last week of the Massachusetts District Attorneys Association and was meant to fill a legal void left by the Supreme Judicial Court decision in December that eliminated sentences of life without parole for juveniles, even those convicted of the most horrendous crimes. “It’s about the injustice this would mean for the victims’ families,” said state Senator Barry Finegold, a Democrat from Andover and one of the sponsors of the legislation.
Senator minority leader Bruce Tarr, a Republican from Gloucester who cosponsored the bill, added that he has spoken with the families of murder victims and “their loss is no less because their suffering was at the hands of a juvenile.”...
According to state officials, approximately 66 prisoners who were sentenced to life without the possibility of parole for crimes they committed as juveniles could now be eligible for parole. No hearings have been scheduled.
Joshua Dohan — director of the youth advocacy division for the state Committee for Public Counsel Services, the state’s public defender agency — questioned how the state legislators reached the 35-year mark. Dohan pointed out that international standards, agreeing that teenagers have mindsets that are different from those of adults, call for juvenile sentences of, on average, no more than 20 years in prison, even for murder.
He said legislators are reacting quickly to a sensitive issue, but that they should slow down the process. He called for lawmakers to give judges discretion to hand out punishments, so they could consider a teenager’s culpability in a crime. “These are really important decisions that are going to affect the defendant, but also their families and the families of their victims,” he said....
Tarr and Finegold, flanked by a group of legislators who sponsored the bill, said the 35-year limit is a balance between holding a teenager accountable for his or her crimes and preserving the constitutional issues cited by the courts. Other states, reacting to the US Supreme Court decision, have passed a variety of laws: Wyoming, for instance, offers parole after 25 years.
“While it’s not an ideal situation, we hope this will bring a measure of comfort to the victims’ families,” said Finegold, who said he was working on behalf of Colleen Ritzer, the Danvers High School teacher who was killed in October, allegedly by a student.
A few other recent related posts:
- Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
- One tale (of thousands) of a juve LWOPer now with a glimmer of hope
- Years after Graham and Miller, Florida still working on its legislative response
- A victim's perspective from Iowa on the aftermath of Graham and Miller
- "Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
- "Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
January 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Wednesday, January 22, 2014
"Court struggles with restitution for child porn"
The title of this post is the headline of this AP report on this morning's SCOTUS oral argument in Paroline v. United States. The AP article highlights the Justices' difficulties sorting through all the challenging competing issues in a case that regular readers know I find fascinating.
Similarly, Lyle Denniston at SCOTUSblog has an effective summary of today's argument in this new post which starts and ends this way:
The Supreme Court left no doubt on Wednesday that it is willing to do its part to make sure that victims of child pornography get paid money to offset the harm done to them. But it also found itself very much in doubt about just what that part would be. The answer in the case of Paroline v. United States may depend upon how the Court understands two words: “apportion” and “contribution.”...
The hearing ended where it began: in unresolved complexity.
I hope to find time in the next few days to read carefully and comment upon the substance of the argument today, and everyone can find now at this link the full transcript.
A few (of many) prior posts on Paroline and child porn restitution issues:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
- Explaining why I am rooting so hard for "Amy" in Paroline
January 22, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack
Tuesday, January 21, 2014
"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.
The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”
Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.
Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.
January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, January 20, 2014
Explaining why I am rooting so hard for "Amy" in Paroline
Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:
The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer. Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy. Of the several hundred incriminating images on Paroline's computer, just two were of Amy.
Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.
Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.
No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....
The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....
Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....
Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.
Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."
If upheld, the ruling would change the equation. Courts would not have to determine exactly how much harm any one defendant caused Amy. Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.
Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses. As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution. But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.
More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case. This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses. (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)
In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society. As she has explained:
[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants. Then it would be up to those men to find the others who are also legally responsible. This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts. If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.
Money can make a huge difference for victims of sexual abuse. For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times. Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution. The Supreme Court should too. And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.
Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter. But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.
A few (of many) prior posts on Paroline and child porn restitution issues:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- "Rethinking Restitution in Cases of Child Pornography Possession"
- "The Case for Full Restitution for Child Pornography Victims"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (40) | TrackBack
One tale (of thousands) of a juve LWOPer now with a glimmer of hope
Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence. The piece is headlined "Locking up kids for life? A new court decision takes a step toward juvenile justice reform," and here are excerpts:
Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion. Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory — life in prison without any possibility of parole....
The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....
There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother. The abuses were reflected in Department of Social Services records. In fact, each one had moved out — “escaped,” as one sister put it — as soon as he or she could. Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological. Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible). While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.
With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.” Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented). All other appeals failed.
In most countries, Edward’s sentence would have been impossible. Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify). Edward has spent the past 32 years in jail. He had no hope, no future. Perhaps, until now.
In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.” While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.
But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further. In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....
In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”
Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.
At the very least, for Edward Palmariello, the board will finally hear the whole story.
Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller. That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."
January 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
"Obamacare Is a Powerful New Crime-Fighting Tool"
The title of this post is the headline of this notable recent article from The Atlantic. The subheading highlights its themes: "An astonishing two-thirds of the 730,000 prisoners released each year have substance abuse or mental health problems. But no one has been willing to pay for their treatment — until now." Here is an excerpt:
An astonishing two-thirds of the 730,000 men and women released from America’s lockups each year have either substance abuse problems, mental health problems, or both. Very often, those problems were largely responsible for getting them locked up in the first place. Most addicted and mentally ill prisoners receive little or no effective treatment while they’re incarcerated or after they’re turned loose, so it’s little surprise that ... they soon wind up back in jail. But for some, that revolving door may stop spinning this year, thanks to a little-noticed side-effect of President Obama’s Affordable Care Act. Obamacare, it turns out, might be a crime-fighting tool.
Numerous studies support the common-sense notion that treating offenders’ drug addictions and mental illnesses helps keep at least some of them from going back to jail. Get that junkie off heroin, and maybe he won’t steal your car stereo for fix money; get that mentally ill homeless person on proper medications, and maybe she can find a job instead of turning tricks in alleys. “It’s not the drug itself, it’s the stealing and robbing they do to get the drug,” says Abbie Zimmerman, a therapist at Transitions Clinic, a program based in San Francisco’s hard-bitten Hunter’s Point area that treats former prisoners (including Sanders, who is now an outreach worker there). “If I can keep them sober, I can keep them out of jail.”
But no one has been willing to pay for such treatment for hundreds of thousands of ex-cons. And they certainly can’t afford it themselves: According to a recent report by the Council of State Governments, the vast majority of released prisoners re-enter society with little money and no health insurance. But now many of those former prisoners are eligible for insurance, courtesy of the federal government.
Among many other reforms, the ACA is drastically expanding Medicaid, the federal insurance scheme for the poor. Previously, able-bodied childless adults were generally not covered by Medicaid, regardless of how impoverished they might have been. But starting this year, any American citizen under age 65 with a family income at or below 138 percent of the federal poverty line — about $25,000 for a family of three — is eligible for Medicaid (at least in the two dozen states that have so far agreed to participate in this aspect of Obamacare). Meanwhile, citizens and legal immigrants earning between 138 percent and 400 percent of the poverty line are now entitled to subsidies to help pay for private insurance. Taken together, those two provisions mean that tens, perhaps hundreds, of thousands of the inmates released every year are now eligible for health insurance, including coverage for mental health and substance abuse services.
Providing treatment to those former prisoners could yield enormous benefits for all of us. The average cost to incarcerate someone for a year is roughly $25,000. That means if only one percent of each year’s released inmates stay out of trouble, taxpayers will save nearly $200 million annually — and the pool of troubled ex-cons looking to steal your car stereo will be that much smaller. “Success in implementing the Affordable Care Act has the potential to decrease crime, recidivism, and criminal justice costs, while simultaneously improving the health and safety of communities,” sums up a recent report by the federal Department of Justice.
It all looks great on paper. But there are significant obstacles to making this work in the real world. One is the simple fact that many former prisoners aren’t even aware of their new entitlements. “I don’t really know what Obamacare is,” says Ernest Kirkwood, a Transitions client who spent 29 years in prison, when I tell him I’d like to talk to him about the new health care regime. “I never read the newspaper.”
Making services available is one thing. Getting people whose judgment isn’t that great in the first place to actually use them is another. Plenty of drug users and mentally ill people don’t want to admit they have a problem. The stigma that persists around mental illness keeps some should-be patients away. Richard Rawson, a professor of psychiatry specializing in substance abuse at the University of California, Los Angeles, points out that an earlier experiment that provided residential treatment to just-released drug offenders didn’t work as well as hoped. “People said, ‘I just got out, I don’t want to be in rehab for another year,’” he says.
Sunday, January 19, 2014
"More than a Formality: The Case for Meaningful Substantive Reasonableness Review"
Appellate review of sentencing is under assault. When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, it established appellate review of federal sentences for reasonableness to cabin sentencing judges’ newly acquired discretion. The substantive component of this review — which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate — is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement. Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable. Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve. If sentencing is to be fair, appellate courts must do better. This Note argues that they can.
This Note proceeds in five parts. Part I surveys the history of appellate review of federal sentences. Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts. Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing. Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.
January 19, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, January 18, 2014
SCOTUS grants cert on pair of cell-phone search cases
As reported in this SCOTUSblog entry, "the Supreme Court agreed on Friday afternoon to rule on police authority to search the contents of a cellphone they take from an individual they have arrested." Here is more from Lyle Denniston's effective review of the new Fourth Amendment new technology cases now on the SCOTUS docket:
The Court accepted for review a state case and a federal case, involving differing versions of hand-held telephone capacity.
The Court rewrote the question in the state case — Riley v. California — to limit it to the constitutionality of the evidence actually used against the suspect at his trial. It granted without limitation the government appeal in the other case: United States v. Wurie....
Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.
The state case involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the shooting incident in August 2009; instead, he was arrested later, after he was stopped for driving with expired license plates. Police seized the cellphone he was carrying at the time of his arrest, and twice examined its contents, without a warrant.
The data turned up evidence identifying him as a gang member out to kill members of a rival gang. Other contents included a photo of him with a red car seen at the shooting site. Police were then able to trace calls, leading to a trail of evidence pointing to Riley as a participant in the shooting. No one positively identified him, but the data from the cellphone search was put before the jury, which convicted him of all three counts. He has been sentenced to fifteen years to life in prison....
The government case involves a South Boston man, Brima Wurie. In 2007, a police officer saw him make an apparent drug sale out of his car. The officer confronted the buyer, turning up two bags of crack cocaine. He partially identified his drug source.
Officers followed Wurie from the scene, and arrested him. He was then taken to a police station, where the officers retrieved two cellphones. One of the phones was receiving repeated calls from a number identified as Wurie’s home. The officers checked the phone’s call log. They traced him to his house. The officers deemed the fact that he had cellphones with him as an indication that he carried out drug dealing with the use of such a device.
He was convicted of being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute it He sought to block the use of the evidence taken from his cellphone, but that failed. He was convicted on all charges, and has been sentenced to 262 months in prison.
The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction.
Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each. They probably would be argued one after the other, however. The Court did not expedite the briefing schedule, but they still are expected to be heard in April.
Though these two new cases are directly not about the defendants' underlying crimes and sentences, I cannot help but notice the notable differences in state and federal outcomes. The state defendant, Riley, was convicted of the very violent crimes of "shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon," will be eligible for parole in 15 years. The federal defendant, Wurie, was only convicted "being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute," but he has to serve nearly 20 years before having a chance at release from the federal pen.
After new revelations, should every defendant ever sentenced by Judge Cebull seek resentencing?
The question in the title of this post is prompted by this new AP report headlined " "Federal judge sent hundreds of bigoted emails," which is a summary of this lengthy report released on Friday by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. Here are the basics:
A former Montana judge who was investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.
Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.
Many of the emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 15, 2013, order. The investigation looked at four years of Cebull's personal correspondence sent from his official email account. Investigators also reviewed his past cases and interviewed witnesses.
The investigation found no evidence of bias in Cebull's rulings or sentences, and the witnesses generally regarded him as a "good and honest trial lawyer, and an esteemed trial judge," according to the report.
The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior." The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.
But none of the sanctions took effect and the findings did not become public until Friday on the order of a national judicial review panel. Cebull announced his resignation March 29, two weeks after the judicial council issued its order. After Cebull retired May 3, the 9th Circuit council vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement....
Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported Cebull forwarded an email in February 2012 that included a joke about bestiality and Obama's mother. Cebull apologized to Obama after the contents of the email were published. He told the 9th Circuit panel that his "public shaming has been a life-altering experience" and that he was "acutely aware that each day in my court is the most important day in someone's life."
Cebull was nominated by former President George W. Bush and received his commission in 2001. He served as chief judge of the District of Montana from 2008 until 2013.
I am quite surprised to hear that Judge Cebull sent so many inappropriate e-mail from his chambers, though I am not at all surprised that an investigation by other judges reached the (self-serving) conclusion that there was "no evidence of bias in Cebull's rulings or sentences." In my view, any defendant (especially any female or minority defendant) still sitting in federal prison unhappy with a past sentencing decision made by Judge Cebull could and should use this new report to at least request a focused review of any of his specific sentencing outcomes.
Prior related posts (from 2012) concerning Cebull controversy:
- Should Congress investigate federal judge who forwarded racially charged email about President Obama?
- Apologies, inquiries and calls for resignation involving Chief Judge Cebull
- "Blinded by the Hate: The Real Problem With Judge Cebull's Email"
- NY Times editorial calls for Chief Judge Cebull to resign over email incident
Friday, January 17, 2014
"Family to file lawsuit after troubled execution"... seeking what remedy?
The title of this post is the headline of this breaking news from my own Columbus Dispatch coming less than 24 hours after the great state of Ohio carried out an execution using a novel two-drug execution protocol. Here are the details:
The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.
“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.
McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.
There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions....
Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”
I will be very interested to see the specifics of this federal lawsuit, and I am especially interested in the remedy that will be sought in this matter. Because the person whose constitutional rights were allegedly violated is now dead, I do not think any kind of injunction concerning future executions would be a possible remedy to seek. In addition, the family cannot make a wrongful death claim because McGuire's death was his lawful punishment. Consequently, it would seem the family can only be making a claim for damages based on the alleged pain McGuire suffered over a twenty minute period. (And, I do not believe the family can seek any kind of punitive damages under usual federal civil rights laws for state constitutional violations.)
Recent related post:
- Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems
Thursday, January 16, 2014
Notable new research from Pew about the success of parole in New Jersey
Too often we only hear a lot about parole policies and practices when there is a high-profile story of some parolee committing some terrible crime following parole release. And, problematically, those kinds of headline-grabbing stories can lead to changes in laws and practices that might not be wise if and when broader information and data are considered.
In light of these realities, I am very pleased to have just stumbled across a good-news story about parole practices appearing in this little research report published by The Pew Charitable Trusts’ public safety performance project and titled simply "The Impact of Parole in New Jersey." Here is the report's overview:
Nearly 700,000 offenders were released from U.S. prisons in 2011. Ensuring their successful re-entry into the community remains a critical issue for public safety. A new analysis of New Jersey data, commissioned by The Pew Charitable Trusts, shows that inmates released to parole supervision are less likely to be rearrested, reconvicted, and reincarcerated for new crimes than inmates who serve, or “max out,” their full prison sentences and are released without supervision. The two groups return to prison at nearly identical rates, however, because parolees can be sent back for technical violations—such as failing drug tests or missing meetings—that are not associated with committing new crimes.
These findings demonstrate not only that supervision can make a decisive difference in controlling criminal behavior among released offenders, but also that technical revocations unrelated to new crimes reduce the cost savings of parole. This brief discusses the findings in depth and examines their implications for states’ corrections policies.
"If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment"
The title of this post is the title of this new paper by Kenneth Einar Himma now available via SSRN. Here is the abstract:
Thomas Nagel argues that the pervasive role that luck plays in conditioning behavior seems inconsistent with ordinary views about moral accountability and culpability. As many criminal justice practices seem to rely on these ordinary views, the pervasiveness of luck also seems inconsistent with the legitimacy of a number of criminal law practices. For example, the claim that people do not have direct control over the consequences of their acts and hence that the consequences of an act are conditioned by luck calls into question the legitimacy of the traditional practice of punishing unsuccessful attempts less severely than successful attempts; if the only difference between a successful and unsuccessful attempt is a matter of luck, then there can be no difference, other things being equal, in culpability between the two.
In this essay, I argue that the pervasive role that luck plays in conditioning a person’s acts calls into question the viability of retributivist justifications of punishment, which hold that punishment is justified insofar as deserved. A person is not culpable or deserving of punishment, according to ordinary views, for events beyond her control. But if the factors conditioning an agent’s act are all matters of luck beyond the agent’s control, then she is not deserving of punishment for the act. The pervasiveness of such luck seems inconsistent with retributivism and threatens not only differential punishment for successful and unsuccessful attempts. More significantly, it calls into question the very legitimacy of punishment itself. The problem of luck goes well beyond its implications for the law of attempts.
Wednesday, January 15, 2014
SCOTUS again struggling with state-federal crime intersection in Castleman
The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:
Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.
That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”
After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.
"Congress should scrap drug sentencing 'enhancements'"
The title of this post is the headline of this notable new commentary by Jamie Fellner published earlier this week in The Hill. (Ms. Fellner is senior advisor to the U.S. Program of Human Rights Watch and author of this recent HRW report, An Offer You Can’t Refuse: How Federal Prosecutors Force Drug Defendants to Plead Guilty .) Here is how the commentary starts and ends:
When President Obama recently commuted the extraordinarily severe sentences of eight men and women convicted on federal crack cocaine charges, he rightly noted they had all been sentenced under an "unjust" law that mandated vastly harsher prison terms for crack than for powder cocaine offenses.
But the injustice in these cases wasn't limited to that disparity – nor even to fact that all were charged with offenses carrying harsh mandatory minimum sentences keyed solely to the type and amount of drug involved in their crime and not their role in the offense.
Prosecutors in half the cases used a 1986 sentencing provision that enables them to pursue sentences "enhanced" far beyond the mandatory minimum if the defendant has prior convictions. For defendants with one prior, their sentence can be doubled. If a defendant facing a ten-year minimum sentence has two prior drug convictions, the prosecutors can transform his sentence into life. The decision to use “enhancements” is in the prosecutor’s sole discretion and the courts have no choice but to impose the egregiously harsh enhanced sentences.
Take Stephanie Yvette George, one of the eight. She was convicted in 1997 because, as the judge said, she was the “bag holder and money holder” for crack-dealing boyfriends. She had been looking at a ten-year mandatory minimum sentence on crack conspiracy charges – already too severe a punishment for a bit player in the drug business. But prosecutors chose to increase her sentence to life because she had two earlier convictions for selling a total of $160 worth of crack – offenses for which she served nine months in a work-release program. Because there is no parole in the federal system, her life sentence was a sentence to die behind bars.
As George’s case illustrates, even a small-time drug offender with some petty prior convictions can be sentenced to life if a prosecutor decides to trigger the sentencing enhancement. Because mandatory sentences take no account of an offender's role in a crime, ten years is the minimum most street level dealers, bit players, and even couriers face unless they can secure a lower sentence through a plea agreement. Moreover, the prior convictions that turn ten years into a life sentence could have happened long ago, the defendant may never have been sentenced to prison (e.g. the sentence was for probation), and the crimes could have been as minor as simple possession of marijuana for personal use.
Some prosecutors use the enhancement provision in every case in which it's applicable. Most, however, use the threat of enhancements to strong-arm defendants into pleading guilty -- a threat they make good on if the defendant refuses. As one former prosecutor told me, "We would only invoke [the enhancement]…to penalize a defendant for the audacity of going to trial."...
In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid seeking sentencing enhancements in drug cases unless the circumstances warranted such severe sanctions. But he provided such broad criteria for determining whether such circumstances exist that, as Judge John Gleeson of the Eastern District of New York has pointed out, any capable prosecutor who wants to seek the enhancement can justify doing so.
The attorney general should prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. But as long as the drug sentencing enhancement provision remains on the books, prosecutors are likely to use it. Congress should abolish the provision as part of a broader reform to the regime of mandatory minimum sentencing laws that have sent tens of thousands to prison with sentences that are neither just nor fair.
Related recent post:
- Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
Monday, January 13, 2014
Does Gov. Christie kerfuffle suggest being a bully is always a big part of a former prosecutor's playbook?
I have been thinking about the question in the title of this post for a few days, and a helpful reader altered me to this post at Above the Law talking through a similar line of thinking. The post by defense attorney Joe Patrice is titled "Governor Chris Christie Did What We All Should Have Expected From An Old Prosecutor," and here are excerpts from a lengthy and amusing screed against Christie and all modern prosecutors:
Unless you’re living under a rock or stuck in traffic on the George Washington Bridge, you know that N.J. Governor Chris Christie spent [Thursday] digging himself out of the Fort Lee traffic scandal in the most Jersey of manner — by placing a proverbial bullet in the back of the neck of one of his most trusted allies Tony Soprano-style. He even invited the media over to the Bada-Bing for a couple of hours after he did it.
Deputy Chief of Staff Bridget Kelly took the rap for closing lanes on the GWB and creating a traffic snarl for Fort Lee residents after a smoking gun email emerged where the staffer seemingly ordered David Wildstein, himself a once highly-paid Christie staffer who resigned last month, to stop up the bridge to make life miserable for Fort Lee. The mayor of the town — a Democrat — had failed to fall in line and endorse the Republican Christie in his re-election campaign, and Kelly’s email outlined the chosen means of retaliation. It seems dumb, but people may have died over this issue.
Liberal columnists are calling Christie basically an overfed Pol Pot and conservatives are comparing this — because they cherish beating their dead one-trick pony — to Benghazi. But whether Christie was directly involved in this scandal or not — and so far the digital paper trail seems to begin with his mild-mannered aide showing uncharacteristic initiative and ends with a high school crony whom Christie put in charge of the bridge — this scandal falls somewhere between unsurprising and utterly inevitable.
Christie is a former prosecutor, serving as a U.S. Attorney from 2002 until 2008. The modern prosecutor is armed with the luxury to exact petty, brutal revenge on any and all who cross him or her, and this is the mentality that Christie brought into the Governor’s Mansion. Indeed, he made this mentality his political calling card.
Oh, and will this matter in 2016? Yes, this will matter in 2016. Sort of. Or sort of not. Look, we’re getting ahead of ourselves....
[The Gov. Christie administration] atmosphere flows directly from the arrogance of a prosecutorial office. Chris Christie frigging loves being a prosecutor. He talks about it all the time. He gets off bullying journalists who ask him simple goddamned questions by pointing out that he’s a prosecutor....
[U]nabashed imperiousness is not just a product of Christie’s thuggery; rather, it flows from the modern prosecutor. More and more, society judges prosecutors by their ability to make public spectacles of securing big prison time for low-hanging fruit — even to the exclusion of taking on the harder cases. Acting as a neutral purveyor of justice has fallen so far to the wayside that defense lawyers are legitimately shocked when prosecutors adhere to their constitutional duties. They are the masters of their own little kingdoms, with nearly limitless power over the fates of all those who brush up against the criminal justice system in their domain. No wonder they get a little drunk with power.
Armed with extensive discretion and so many potential charges to bring, prosecutors can, and do, construct draconian threats by heaping additional and enhanced charges on defendants who refuse to play ball. Plea deals are no longer limited to “going up the chain,” as the masterminds of wrongdoing are now given deals to rat out their underlings for harsher punishment....
Prosecutors are incentivized to use all of their vast power to get more people convicted, and they’re willing to use a bazooka to kill a cockroach if it advances that ball. Listen, I spent a lot of time working with current and former prosecutors. And whether I represented a cooperator working with the government or I was sitting on the same side as a defense lawyer freshly out of the prosecutor’s office, it always disturbed me how quickly they would leap to asking “how do we screw them?” over the most minor of slights.
When this is the model of success that propels you into office, how does one reset? In Christie’s case, he never eschewed this model of leadership. He may well have directly ordered these lane closures, but even if he didn’t, the mentality he has championed in his meteoric rise to prominence invited this sort of behavior. And now we’re supposed to be forgiving when he says his deputy acted alone when plotting to make life hell for someone unwilling to kowtow to the Governor’s overtures?
Sunday, January 12, 2014
"Kaleidoscopic Chaos: Understanding the Circuit Courts’ Various Interpretations of § 2255's Savings Clause"
The title of this post is the title of this informative and important new piece now available via SSRN and authored by Jennifer Case. Here is the abstract:
More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time — and with increasing frequency — the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.
In their attempts to understand the Savings Clause’s scope and meaning, the circuit courts have found a myriad ways to navigate the gap between § 2255 and § 2241 and find a path for a petitioner to bring her § 2241 petition. However, in undertaking their task, the circuit courts have created kaleidoscopic chaos that impairs the ability of prisoners, counsel, and the federal courts themselves to understand when and how a federal prisoner can pass through the Savings Clause and challenge his conviction and sentence in a § 2241 petition.
This article reveals the patchwork of Savings Clause jurisprudence created by the circuit courts. Then, using several realistic hypotheticals, the article explores how geography, circuit precedent, and the nature and timing of intervening interpretations of criminal statutes determine whether and when prisoners who are serving sentences for acts that the law did not criminalize can bring a federal habeas petition and get out of prison. Through the use of these hypotheticals, the reader learns how the fates of federal prisoners (who appear to be similarly-situated) vary wildly depending on such things as where they were sentenced, where they are presently confined, and how and when the court system’s understanding of the underlying criminal statute changed.
Wednesday, January 08, 2014
Unwrapping the Eleventh Circuit's final 2013 holiday present to prisoners challenging sentencing errors
Late last year, a helpful reader alerted me to an important (and very lengthy) new Eleventh Circuit panel decision in Bryant v. Warden, FCC Coleman, No. 12-11212 (11th Cir. Dec. 24, 2013) (available here). I have waited to blog about it until now because (1) I did not want this important Christmas Eve decision to be overlooked during the holiday weeks, and (2) federal public defender Amy Baron-Evans said I could use her new summary of the 110-page ruling to highlight why Bryant is the first must-read of 2014. Here is the heart of Amy's summary of Bryant:
Eleventh Circuit Holds Savings Clause Opens the Door to a 2241 Petition Raising an Error Resulting in a Sentence Exceeding the Statutory Maximum
In Bryant v. Warden, __ F.3d __, 2013 WL 6768086 (11th Cir. Dec. 24, 2013), the Eleventh Circuit reversed the district court’s dismissal of Bryant’s 28 USC § 2241 habeas petition brought pursuant to the savings clause, 28 USC 2255(e), which permits a prisoner to file a 28 USC § 2241 petition when a § 2255 motion is “inadequate or ineffective to test the legality of his detention.”
This is an important decision for successive petitions raising claims under DesCamps or any other claim that the sentence exceeds the lawful statutory maximum. If you file a successive petition under 28 USC § 2255, and it is dismissed because it doesn’t meet the successor standard under § 2255(h), a § 2255 motion is “inadequate or ineffective to test the legality of [the prisoner’s] detention” under § 2255(e), and you can file a habeas petition under § 2241.
Leland Kynes of Holland & Knight was appointed to represent Bryant.
Bryant proved that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and so his 2241 petition could now proceed under § 2255(e) because: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, binding circuit precedent held that a Florida concealed-firearm offense was a “violent felony” and squarely foreclosed his 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum in 924(a); (2) subsequent to Bryant’s first § 2255, the Supreme Court’s decision in Begay, as interpreted by the circuit, “busted” circuit precedent holding that the Florida concealed-firearm offense was a “violent felony”; (3) Begay’s new rule applies retroactively on collateral review; (4) as a result, Bryant’s 235–month guideline sentence exceeds the 10–year statutory maximum authorized by § 924(a); (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum.
The government raised no objection to Bryant’s attempt to proceed under the savings clause, so the court appointed amicus counsel to argue that it does not apply even when the sentence exceeds the statutory maximum. The court rejected amicus counsel’s arguments.
The Eleventh also held that procedural default (by not raising the issue on direct appeal or in his first § 2255) did not bar the claim. While futility does not constitute cause to excuse procedural default, the procedural default rule is not jurisdictional but is an affirmative defense that the government can waive, and the government waived it. In addition, the savings clause under § 2255(e) applies regardless of whether the prisoner “has failed to apply” for § 2255 relief or the sentencing court “has denied him” § 2255 relief. Whether the savings clause may open the door to a § 2241 petition is jurisdictional, and so the court had to decide it.
As noted, the government waived procedural default and any objection to Bryant proceeding under the savings clause. The docket notes that the government has conceded the savings clause issue in other cases, and I’m told the government has not raised procedural default in other cases in other districts. So this appears to be coming from the Solicitor General’s office, and its position is apparently that ACCA cases are different because a sentence above the statutory maximum is per se illegal.
The government did argue that a 1988 burglary conviction could be substituted for the concealed weapons conviction as the third ACCA predicate. The court of appeals rejected that argument because the government did not object at sentencing to the district court’s finding that there were only three predicates or suggest at sentencing that the burglary conviction could be a predicate.
The court of appeals describes a “deep and mature circuit split” on the reach of the savings clause at pages 24-26 of its decision. This part of the decision is not entirely clear and you should check your circuit caselaw. Other circuits may adopt the Eleventh Circuit's approach, and if not, file a cert petition.
"Probability and Punishment"
The title of this post is the title of this notable new paper by Jacob Schuman now available via SSRN. Here is the abstract:
Imagine two defendants, A and B, who have each been convicted of drug trafficking. Defendant A was arrested with 1,000 grams of crack-cocaine. Defendant B was arrested with only 100 grams of crack but also a large quantity of cash, which he more than likely, though not certainly, earned by selling 900 grams of crack shortly before his arrest. Should A and B receive the same punishment?
Federal criminal law says that they should. This Article will argue that they should not. The probability that A sold 1,000 grams is higher than the probability that B did, so B deserves the lighter sentence.
The justice system can never determine with absolute certainty that an accused defendant committed a particular crime. To render judgment, therefore, the criminal law must estimate the probability that each defendant is guilty of the offense charged and then translate that probability into specific penal consequences. The guilt stage of criminal proceedings — the criminal trial — uses what scholars have called a “threshold model” of translation. Under this model, the prosecution may convict a defendant by establishing that the likelihood that he committed the crime charged exceeds a certain “threshold” level of probability. If it is “beyond a reasonable doubt” that the defendant did the deed, he will receive a guilty verdict. Otherwise, he will walk free. Neither outcome will reflect a precise measure of the odds of the defendant’s guilt. A “probabilistic model” of translation, by contrast, would vary the outcome of each trial depending on the probability that the defendant committed the crime of which he is accused.
This Article breaks new ground by demonstrating that the penalty stage of criminal proceedings — the sentencing hearing — also uses a “threshold model.” The United States Sentencing Guidelines instruct federal judges to make a series of factual findings that either add to or subtract from a recommended sentence for every case. Each adjustment to the recommended sentence depends on whether a certain factual predicate is “more likely than not” to be true — just like at trial, this threshold level of probability fails to precisely measure the odds of the defendant’s culpability. However, while scholars have offered several important justifications for the threshold model of conviction, these arguments do not hold up for the threshold model of sentencing. Moreover, the two flaws identified with the threshold model of conviction — inefficiency and unfairness — are not only present at the penalty stage of the proceedings, but in fact are exacerbated by a few unique features of the law of sentencing.
The threshold model of sentencing poses a particular problem when it comes to determinations of drug quantity in the punishment of drug offenders. Courts often rely on extrapolation and inference to make such determinations, and as a result, they frequently mete out lengthy sentences based on quantity estimations that carry a high risk of error. District courts and policymakers should mitigate the inefficiencies and injustices that result from these fact-findings by incorporating probability into drug quantity determinations at sentencing.