Monday, February 10, 2014

"'Furiosus Solo Furore Punitur': Should Mentally Ill Capital Offenders Be Categorically Exempt from the Death Penalty?"

The title of this post is the title of this new Note by Emily Randolph now available via SSRN.  Here is the abstract:

Rather than continuing to use mental illness as a mitigating factor in determining sentencing of the capital offender, this paper argues that the Eighth Amendment’s protection from cruel and unusual punishments should be extended to cover capital offenders who suffer from debilitating mental illness. More specifically, if a convicted offender has a medically diagnosed mental disorder as outlined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or other similar standard for psychological evaluation, he or she should be exempt from the possibility of the imposition of death as a punishment. This paper discusses the Supreme Court cases of Atkins v. Virginia, 536 U.S. 304 (2004), Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007) and Roper v. Simmons, 543 U.S. 551 (2005), and how to extend the Court's reasoning in those cases to cover mentally ill capital offenders.

February 10, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Registered sex offender makes case against sex offender registry

Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:

I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.

Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone.  Help eventually came when my girlfriend discovered child porn on my computer and went to the police.  I was then and remain grateful to her for taking that step.

As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten.  With luck, I managed to win acceptance to law school despite my conviction.  I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past.  I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam.  Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.

But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.  

Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment.  How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest.  I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.

My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.

Nowhere is this more evident than the sex-offender registry.  Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.  

The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes.  That view, however, is at odds with data from the Department of Justice and others....

I know that I am not a sympathetic figure by virtue of my crime.  I know that I can never change the past or undo the things that I have done.  My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.

February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Sunday, February 09, 2014

Nebraska Supreme Court gives Miller retroactive impact with new statutory law

As reported in this local article, headlined "Nebraska Supreme Court ruling could affect 27 teen murder cases," late last week the Nebraska Supreme Court resolved how the SCOTUS Eighth Amendment ruling in Miller concerning juve LWOP sentences would be applied in the Cornhusker State. Here are the details:

The Nebraska Supreme Court issued precedent-­setting decisions Friday that gave hope to 27 prison inmates serving life terms for murders they committed as juveniles.  Nebraska's high court ruled that three Omaha men who were convicted when teenagers were unconstitutionally sentenced to life in prison without the possibility of parole.  While the Supreme Court upheld their murder convictions, it ordered that all three be given new sentences....

The three inmates will return to Douglas County District Court to be resentenced under a law passed last year that allows sentences from 40 years to life.  The new law also requires judges to consider factors that could mitigate the youth's responsibility....

Although the Nebraska court ruled largely in favor of the inmates on the constitutional issues, it rejected arguments that sought to remove life as an option during resentencing. Nor was the court in unanimous agreement on all of the issues involving juvenile killers.  In a dissent, two of the judges said the U.S. Supreme Court's decision should not apply to inmates who long ago lost their direct appeals....

Nebraska has 27 inmates serving life for homicides committed when they were younger than 18.  The oldest is Luigi Grayer, 58, who was 15 in 1970 when he killed an Omaha woman....

Assistant Attorney General James Smith argued that Nebraska's sentencing law didn't violate the Miller ruling because the juveniles were sentenced to life in prison, not life “without parole.”  Under Nebraska's system, such inmates would have to get their sentences reduced to a term of years by the Nebraska Board of Pardons before earning parole. Having to first win executive clemency is not the same as parole, the high court ruled, rejecting the state's argument.  In other words, a life sentence effectively means life without parole....

The second pivotal question before the court was whether the Miller decision applied to inmates whose convictions had already been upheld on appeal.  Because the high court found that the Miller ruling resulted in a “substantive” change to how juvenile killers must be sentenced, it found that the ruling applied retroactively to Mantich.  The Nebraska judges quoted from an opinion of the Iowa Supreme Court, which also determined that juvenile killers should get new hearings.

Via How Appealing, here is additional coverage of these rulings and links to the decisions:

The Lincoln Journal Star reports that "Nebraska high court vacates life sentences of 3 men" [and] the Supreme Court of Nebraska  three decisions applying the U.S. Supreme Court's 2012 ruling in Miller v. Alabama  [are] herehere, and here.

February 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 08, 2014

Is anyone making a broadside constitutional attack against private prisons?

The question in the title of this post is prompted by this notable new blog post by Professor Michael Tigar over at his blog TigarBytes.  The post is titled "Private Prisons Are Unconstitutional," and here is an excerpt:

In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants. In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the "mayor's court" provided a significant share of the town's financial resources. The mayor had a major role in the administration of town finances. The Court held this arrangement violated due process.

The due process evil of occupancy guarantees [in private prison contracts] works on two branches of government. The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment. It is but a small step from Tumey and Monroeville to such a conclusion.

However, there is an additional evil here. The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas. One must assess the influence -- direct and indirect -- on prosecutors to make sure that those prison beds are filled....

A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In New York, there was a federal injunction against sellers of fake Vuitton merchandise. Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators. There are several opinions in the case, but the upshot is that without strict judicial supervision, the "Vuitton system" posed too great a danger that the special prosecutors would pay more attention to Vuitton's interests than to their ethical obligation to prosecute fairly.

Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States.  Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.

I do not pretend, in this post, to explore all the relevant case-law.  I simply express a hope that somebody will start to litigate these issues.

February 8, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, February 06, 2014

"Justices Asked to Define 'Mentally Retarded' in Death Cases"

The title of this post is the headline of this new article by Marcia Coyle in The National Law Journal previewing the biggest SCOTUS capital case of the current Term. Oral argument in the case is less than a month away, and here is how this article begins to set the table in a very interesting and important procedural Eighth Amendment case:

Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."

Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow.  The court will hear arguments in Hall v. Florida on March 3.

Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."

"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.

Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations.  However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.

Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa.  "Yet that is precisely what Florida has done here."

February 6, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, February 05, 2014

"The Perverse Effects of Efficiency in Criminal Process"

The title of this post is the title of this great-looking new paper by Darryl Brown now available via SSRN.  Here is the abstract:

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bargaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end or a mean. Jury decision making, for example, was once an end of trial process that served public interests beyond rendering verdicts. Over time it has become merely a means; case resolution became the overriding dominant goal. Making a process more efficient can thus change both its nature and purposes. Moreover, efficiency’s consequences are more ambiguous than is often recognized. Producing any product more cheaply — including criminal convictions — can have a range of effects. It can reduce production costs if demand is constant; it can help to meet rising demand without a rise in production costs; it can also generate greater demand for the good.

This Essay develops these ideas in criminal adjudication and links adjudication’s efficiency-driven transformation to the expansion of criminal law enforcement and punishment in recent decades. By lowering the unit-cost of convictions, efficient adjudication can encourage more prosecutions and marginally subsidize more incarceration. In the process, efficiency has redefined adjudication’s aims and reordered its priorities, valuing clear, measurable aspects such as numbers of convictions and devaluing qualitative components related to juries, participation, the substantive nature of judgments, and perhaps factual accuracy.

February 5, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

First Circuit rejects feds request for remand for a sentencing jury make finding to trigger mandatory term

Both Sixth Amendment fans and sentencing fans are going to want to check out a fascinating decision by the First Circuit today in US v. Herrerra Pena, No. 12-2289 (1st Cir. Feb. 5, 2014) (available here). The start of the opinion makes clear why:

In federal prosecutions, under the requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b).  But if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum -- either 10 years, 5 years, or no minimum, depending on the drug type and quantity. See 21 U.S.C. § 841(b)(1)(A), (B), (C).  When, as here, there is Alleyne error resulting in the imposition of a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have merely remanded for resentencing by the district courts.

The prosecution here asks us to depart from that usual practice.  We are asked, after an Alleyne error and following a conviction based on a straight guilty plea to drug dealing but not to "death resulting," to permit the prosecution on remand to empanel a sentencing jury to allow the government to now prove beyond a reasonable doubt that a death resulted from the defendant's drug dealing.  Because Alleyne was decided after sentencing and while the case was on appeal, the situation in this case will not frequently occur.  We hold that the government's proposed course of action is foreclosed on the facts of this case, is unfair, and would raise troubling constitutional questions that can be avoided by denying the government's request.

February 5, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Distaff side death penalty developments in Texas and Arizona

Women-death-rowI always find gender differences and disparities quite interesting in the administration of the modern death penalty, and thus these two news stories from two states captured my attention this morning.

From Texas via the AP here, "Woman Set to Be Executed in Texas for 1998 Killing," gets started this way:

A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976.  By comparison, almost 1,400 men have been put to death. Texas, the nation's busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston.  Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope.  A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.  "It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso.  "I was determined I was not going to let her get away with it."

Basso's attorney, Winston Cochran Jr., had asked the appeals court to overturn the lower court's finding that Basso was mentally competent to face execution.  He argued that Basso suffered from delusions and that the state law governing competency was unconstitutionally flawed.  Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago.  At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her. But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.

From Arizona via The Republic here, "5 Arizona Women Face Rare Death Penalty" gets started this way:

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930. So, it’s a peculiar confluence of fate that five capital-murder cases against women are working through Arizona courts in these early months of 2014:

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009. And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Death-penalty cases are rarely clear-cut; less so when the defendants are women. Last spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces. One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.  “The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico. Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.  Women who kill tend to kill spouses, lovers, children and family members. “Those cases are rarely capital cases,” she said.

February 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Michigan legislature nearing enactment of Miller fix without retroactivity

As reported in this AP article, headlined "Mich. House OKs Sentencing Rules For Young Killers," a state that has imposed LWOP on a very large number of juvenile murderers is getting close to revising its laws in response to the Supreme Court's constitutional concerns with mandating this punishment.  Here are the details:

Young killers could no longer be sentenced to mandatory life without parole under legislation nearing final approval in Michigan, but those now incarcerated for crimes committed under age 18 would stay locked up despite pleas for a second look.

The Republican-controlled state House voted 62-48 Tuesday, mostly along party lines, to approve the new sentencing rules, 19 months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles. The Senate is expected to send the bill to Gov. Rick Snyder; it approved an earlier version in the fall.

The Supreme Court’s June 2012 decision – based on the constitutional prohibition against cruel and unusual punishment – is silent on retroactivity, and courts across the country have been divided ever since on the issue. It is especially relevant in Michigan, home to around 360 juvenile lifers, the second-highest number in the U.S.

House Criminal Justice Committee Chairman Kurt Heise said he wishes the high court had settled the retroactivity question, but lawmakers put guidelines in place in case it does in the future. The bill includes a “trigger” so prisoners now behind bars would be resentenced if the U.S. Supreme Court or Michigan Supreme Court determines the 2012 ruling should apply retroactively....

Juveniles can still be sentenced to life without parole after the high court’s decision. The sentence just cannot be mandatory on judges, who also must consider factors such as defendants’ immaturity, rehabilitation chances, family and home environment, peer pressures and inability as youths to navigate possible plea deals.

If Michigan juveniles charged as adults commit first-degree murder or other serious crimes causing death and do not receive life without parole, judges would have to sentence them to a minimum of at least 25 years and a maximum of at least 60 years under the bill....

It is estimated that 150 prisoners serving life without parole for crimes committed as juveniles were accomplices, not the actual killers.

Over objections from Michigan Attorney General Bill Schuette, U.S. District Judge John Corbett O’Meara in November directed the state to give juvenile lifers an opportunity to apply for release or face the appointment of a special master to oversee the process. His ruling was appealed.

Jody Robinson’s brother was killed by a 16-year-old and 20-year-old in Pontiac in 1990, and she later co-founded the National Organization of Victims of Juvenile Lifers. “This legislation will not only put Michigan laws in compliance with the U.S. Supreme Court, but it also gives victims’ families the hope that legal finality is a possibility and the nightmare of repeatedly reliving their loved one’s murder may soon come to an end,” Robinson said in a statement released by Schuette’s office.

February 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, February 04, 2014

"Prosecutors Wrong to Oppose Sentencing Reform"

The title of this post is the headline of this new commentary appearing at Main Justice and authored by Jamie Fellner, who is a senior advisor to the US Program of Human Rights Watch and the author "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" (discussed here).   Here are excerpts:

Sentencing reform efforts are finally getting some traction after three decades mandatory minimum drug sentencing laws that crammed federal prisons with low-level drug offenders.  A bipartisan bill pending in the US Senate would reduce mandatory minimums for certain drug crimes and give judges some discretion to impose lighter sentences.  Attorney General Eric Holder has endorsed the legislation, saying it "could ultimately save our country billions of dollars in prison costs while keeping us safe."

Some federal prosecutors diagree.  The National Association of Assistant United States Attorneys (NAAUSA) has sent a letter to Holder saying mandatory minimums “reach only to the most serious of crimes.  They target the most serious criminals.  They provide us leverage to secure cooperation from defendants.  They help to establish uniformity and consistency in sentencing.  And foremost, they protect law-abiding citizens and help to hold crime in check.”

An impressive set of claims -- but mostly false.

Mandatory minimums reserved for the most serious criminals?  Hardly.  According to the United States Sentencing Commission, 93 percent of federal drug defendants come from the lower or middle tiers of the drug business; 40 percent were couriers or street level dealers....  As a former US Attorney told me, "The public simply does not realize how many low-level guys are in [federal] prison.... We lock up the lowest fruit in drug conspiracies."...

Nor is it true that mandatory minimums "establish consistency in sentencing."  Mandatory sentences were introduced in the 1980s and 90s amid complaints that judges in different districts were meting out wildly varying sentences for the same crimes.  But mandatory minimum sentencing laws simply shifted the source of disparities from judges to prosecutors.  In some federal districts, prosecutors always charge everything they can throw at the defendants and refuse to negotiate; in other districts, they're more willing to negotiate a lower sentence.  Because of differences in prosecutorial charging and plea bargaining practices, the average drug sentence ranges from a low of 25 months in some districts to a high of 128 months in others.

What mandatory minimums do -- and here we get to the heart of NAAUSA’s opposition --is provide prosecutors with "leverage" to extract guilty pleas and cooperation from defendants.  Leverage is a polite word for coercion.... 

Those who refuse the deal and go to trial get hammered.  The average sentence of drug offenders who don't plead is three times as long those who do.  And in many cases, the “trial penalty” -- the difference between the sentence a defendant would have received if she had pled versus the sentence imposed after trial -- is extraordinarily cruel.  To cite just one case, a Florida woman named Sandra Avery rejected a plea offer of a ten-year mandatory minimum for dealing small quantities of crack.  The prosecutors punished her with a mandatory sentencing enhancement that sent her to prison for the rest of her life....

But what if the threat of high mandatory minimum sentences were the only way prosecutors could get defendants to plead or to cooperate.  Would that be good reason to keep them?  We think not, since securing pleas -- or even encouraging cooperation – has never been considered a legitimate purpose of punishment. Punishment should fit the crime -- not a defendant’s willingness to plead or snitch. How is it justice to convert a refusal or inability to cooperate into a much higher sentence than a particular crime deserves?

The real issue is that prosecutors do not want judges to set sentences.  Mandatory minimum sentencing laws tie judges’ hands, leaving prosecutors with the enormous power to dictate minimum sentences through their charging decisions.  Confronted with that power, 97 percent of federal drug defendants today plead guilty.  Prosecutors are able to rack up convictions without the expense, risks and burdens of trial.

No one likes to relinquish power -- so it is not surprising that at least some prosecutors want to retain the advantages of mandatory minimum sentencing laws.  Cutting back on mandatory minimums would not, however open the floodgates to crime: judges are quite capable of ensuring serious criminals get serious sentences.  But sentencing law reform would make it harder for prosecutors to coerce defendants into pleading guilty. It would deprive prosecutors of a plea bargaining cudgel they never should have been given in the first place.

A few recent related posts:

February 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Reflecting on Obama Administration's latest "half-way" approach to clemency

Mark Osler authored this effective commentary concerning the recent comments coming from the Department of Justice concerning a new focus on granting clemency.  The piece carries the headline "Only half-way there on mercy," and here are excerpts:

In an extraordinary speech to the New York State Bar Association earlier this week, Deputy Attorney General James Cole did two significant things.

First, he announced that when President Obama used the pardon power in December to commute eight lengthy federal sentences for narcotics trafficking, this was only a “first step,” and that there is “more to be done.”  Second, he outlined how a much more extensive round of commutations might happen.  The first of these was historic, remarkable, and right. The second part is more problematic.

The good news is that this administration, unlike its most recent predecessors, intends to use the pardon power in a vigorous and principled way....

The method Cole outlined to produce more commutations is where the problem lies.  The administration intends to have the Bureau of Prisons spur inmates to seek commutations and then encourage state bar associations to direct their members to prepare petitions for those inmates.

Cole made this appeal to deputize lawyers in a very direct way during his New York speech  — telling the bar association there that “this is where you can help.”  The hope is that, in the end, this will produce a wave of good candidates for commutation.

Unfortunately, this solution doesn’t address the actual problem with federal clemency. No one has suggested that what is broken with the pardon power is that there aren’t enough petitions in the system — to the contrary, there is a backlog of some 3,500 clemency petitions awaiting a decision.

The problem is that the process doesn’t work.  The pipeline is clogged, and the solution can’t be simply to jam more things into it.  The present structure for consideration of these often-complicated petitions has done a terrible job handling the workload it has now; it’s unclear how giving the pardon attorney and the others who consider these petitions even more work is supposed to solve the problem. Increasing the size of the clog does nothing to clear out a pipe....

Critics hailing from such diverse corners as the Heritage Foundation and the American Constitution Society have called for wide-ranging reform of the pardon process.  This might be the time to implement significant changes, such as removing many levels of review and giving the person or committee charged with making recommendations on clemency much more frequent and direct access to the president.

Even if systemic reform of the process isn’t undertaken or doesn’t take immediate effect, a shorter-term solution is available.  Obama could empanel a presidential clemency board for a period of 12 to 18 months to consider the mass of petitions that may be generated through the process Cole described.

This pop-up agency would push through the egg in the snake, make its recommendations, and disband.  Their efforts would be revenue-positive (because of savings in incarceration costs), further an important policy goal that has been embraced by members of both parties and all three branches of government, and avoid the dangers presented when a new, permanent bureaucracy is established. What’s not to like about that?

Some recent and older posts concerning federal clemency practices:

February 4, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, February 03, 2014

Should there be a death penalty exemption for combat veterans with PTSD?

The provocative question in the title of this post is the issue raised in this intriguing article from The Crime Report authored by Curtis Stephen and headlined simply "The Death Penalty and Combat Vets." Here are excerpts:

At the sprawling Allan B. Polunsky Unit — which houses some 300 people on death row in Livingston, TX — John Darrell Thuesen awaits word of a Texas Court of Criminal Appeals ruling that he hopes will spare his life.  The appeal is being closely watched across the country.

Before Thuesen, 30, was convicted on capital murder charges following a highly publicized trial in 2010, and became Inmate No. 99957, he was a decorated U.S. Marine lance corporal in Iraq, where he served from August 2004 to September 2005.  The trauma he suffered in combat, Thuesen argues, left him with impaired mental capacity — and should therefore exempt him from capital punishment.

Many legal experts agree.  “If someone has combat-related post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI) related to something that occurred in war, (he or she) should be entitled to a categorical exemption from the death penalty,” argues Anthony Giardino, an Atlanta attorney and Iraq war veteran who proposed the exemption in an article published in The Fordham Law Review in 2009....

As America’s military presence in Iraq and Afghanistan draws down, the argument has become part of an emotional — and contentious — national debate about PTSD, with some experts claiming that it is just one of a number of factors that may drive violent criminality....

There is no current data on the number of American military veterans on death row; nor are there figures on the number of former soldiers incarcerated nationwide, including those who served in Iraq and Afghanistan.  The most recent U.S. Department of Justice statistics date to 2004, when 140,000 veterans — most of whom fought in Vietnam — were held in federal and state correctional facilities.  In that year, about 18,000 ex-soldiers were either serving life sentences or facing capital punishment.

But the impact of a proposed veterans’ exemption from the death penalty is potentially broad.  To date, more than two million Americans have, at some point, been deployed to Afghanistan and Iraq since the conflicts began in 2001 and 2003, respectively.  And while the vast majority of returning soldiers won't be diagnosed with PTSD, a 2008 RAND study found that some 300,000 veterans met the criteria for it....

Veterans advocates say the presence of veterans on criminal court dockets — including for violent, capital offenses — isn't surprising.  “You're talking about survivors who had multiple tours in war and are coming back with symptoms of layered PTSD,” says Shad Meshad, founder of the Los Angeles-based National Veterans Foundation.  “It's like a bomb waiting to go off for some people.”...

“We should be drawing short of taking the life of someone who was suffering mentally at the time of the crime,” says Bill Pelke, a Vietnam veteran and co-founder of the anti-violence advocacy group, Journey of Hope.

Nevertheless, critics argue there is no justification for excluding combat veterans from capital punishment on the grounds of health disabilities arising from their service.  “I am unaware of any case law, legal, medical or moral reasoning that could establish that all of those with PTSD or TBI should be exempt from the death penalty,” counters Dudley Sharp, a Texas-based victim's rights advocate.

Bret A. Moore, a former military psychologist, is similarly skeptical about the tendency to cite PTSD in criminal cases.  “It gives us an opportunity to blame the violence on something, he says.  “But there's no significant data showing that people with PTSD are any more violent than people without it.  My concern is that veterans are getting tagged as violent, which isn't accurate and does a disservice to those who are suffering from the disorder.”

February 3, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (18) | TrackBack

Sunday, February 02, 2014

"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.

The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.

An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Saturday, February 01, 2014

"Botched executions undermine death penalty"

The title of this post is the headline of this recent op-ed in the Providence Journal authored by Austin Sarat.  Here are excerpts:

This month’s execution of Dennis McGuire made headlines, and rightly so. The start of his execution was followed by a sudden snort and more than 10 minutes of irregular breathing and gasping.  It took Ohio almost 25 minutes to end McGuire’s life.  Newspapers labeled McGuire’s a “slow execution” and a “horrific death.”  His lawyer said, “The people of the state of Ohio should be appalled at what was done here today in their names.”  McGuire, a brutal killer, seemed to become, at least momentarily, an object of pity.

His execution occurred at a time when abolitionists have increasingly turned their attention away from the fate of the people like McGuire, whose guilt in the 1989 murder of pregnant 22-year-old Joy Stewart seems beyond doubt, to focus on those mistakenly and unjustly condemned to die.  Doing so, they have had considerable success in changing attitudes toward America’s death penalty.

In this climate, should we care about what happened to Dennis McQuire? ... Why not treat McGuire’s execution as a freak accident, rather than a symptom of a deeper problem in the death penalty system?

Since the beginning of the republic, we have committed ourselves to punishing without cruelty, to restraining the hand of vengeance no matter how horrible the crimes that give rise to punishment.  On all sides of the death-penalty debate people agree that no method of execution should be used if it involves, as the Supreme Court’s 1947 Francis v. Resweber decision put it, “torture or lingering death” or “something more than the mere extinguishment of life.”

From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, over the course of last century America moved from one technology to another in the hope of vindicating the promise of the Francis decision.... Yet McGuire’s joined a long line of botched executions that have marked America’s use of the death penalty from its beginnings and continued unabated over the last century and more.

Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980.  We might assume that botched executions were more frequent when death came at the end of a rope or in an electric chair or gas chamber, but the percentage of botched executions is higher today, in the era of lethal injection (more than 7 percent), than it was when hanging, electrocution or gas were the predominant modes of putting people to death.

Botched lethal injection procedures are less obviously gruesome than a decapitation during a hanging or someone catching on fire in the electric chair, but they are no less troubling....

It is unacceptable for 3 percent of America’s executions to impose “something more than the mere extinguishment of life.” We should learn from our own history that there is no technological guarantee that we can kill humanely.

February 1, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Friday, January 31, 2014

Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

The very serious question and inquiry in the title of this post is prompted by this notable recent post by Bill Otis that I just saw over at Crime & Consequences.  Bill's post is titled "Hundreds of Career Prosecutors Revolt Against Holder," and here is how the post gets started and its main points:

I spent 25 years [at DOJ], split between Main Justice in Washington and the US Attorney's Office.  Today something happened that, in my experience, is unprecedented.  Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.   If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate. That legislation would drastically cut back on mandatory minimum sentences for drug pushers -- not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs....

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer... [and] a letter [was sent by] the National Association of Assistant United States Attorneys [to] Mr. Holder three days ago....

[T]he fact that hundreds of career prosecutors -- not political appointees, but the men and women in US Attorney's Offices across the country hired on merit -- have revolted against the Attorney General is a development whose importance is difficult to overstate.

Career prosecutors, I can tell you from experience, are uncomfortable taking any role in what could be portrayed as a political issue. They are Republicans, Democrats and Independents, and generally have all the differences of opinion one would expect from a group so large and diverse. They view divorcing themselves from politics as essential. That they have spoken up here, and done so publicly, is a testament to how dreadfully damaging they know the Durbin-Lee bill would be.

I concur completely with Bill's claim in this post that it would be huge "Page One" news if, in fact, there were hundreds of federal prosecutors who "broke into open revolt against the Attorney General."  But I must question whether the mere fact that a letter signed by Robert Gay Guthrie, the President of the National Association of Assistant United States Attorneys, and sent to Attorney General Holder concerning these matters really is evidence of an "open revolt" by hundreds of federal prosecutors.

I believe the letter referenced by Bill Otis above is available at this link via the website of the National Association of Assistant United States Attorneys.  The only "open" name on the letter that I see is Robert Gay Guthrie.  The letter does use the term "we" consistently, so I surmise this letter represents the views of more than just Mr. Guthrie.  But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this two-page letter as proof of an on-going open revolt.  Indeed, the tone and text of the letter does not even strike me as a "revolt" as much as an expression of a viewpoint.

In addition, I cannot help but notice that a lot of the concepts (and even some phrases) in the NAAUSA letter sound like comments often made by Bill Otis here and in other writings he has done in support of the existing system of federal mandatory minimums.  I have heard rumors that Bill serves as a lobbyist for the National Association of Assistant United States Attorneys, and thus I must wonder aloud whether the only person really in "open revolt" right now against AG Holder is Bill Otis.  That said, if Bill helped ghost-write this letter for the National Association of Assistant United States Attorneys and Robert Gay Guthrie, even Bill's own efforts to revolt is not really all that "open."

I raise these matters not because I am troubled that Bill Otis and Robert Gay Guthrie and other past and present federal prosecutors might weigh in on this important on-going federal sentencing reform debate.  But I am truly puzzled by Bill's assertion that there is now an "open revolt against the Attorney General" involving hundreds of federal prosecutors and by his surprise that a simple two-page letter from NAAUSA has not become a "Page One story."

I hope that Bill will use the comments here to explain just why he sees this letter as evidence of an "open revolt" and perhaps he can also name some of the "hundreds" of federal prosecutors who he may know to be a formal part of this "open revolt."  I also hope, if in fact there is now an on-going "open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing" as Bill Otis asserts, that some current federal prosecutors (1) will openly state here or elsewhere that they signed off on this letter and did so as part of an effort to revolt against AG Holder, and (2) will openly discuss any other activities planned as part of this revolt.

I know Bill Otis feels very strongly that the current federal mandatory minimum sentencing provisions should not be reformed.  But, until reading Bill's post, I was not aware that "hundreds" of current federal prosecutors shared his perspective.  And, of course, yesterday 13 of 18 Senators on the Senate Judiciary Committee voted in favor of drug sentencing reform, and I now wonder if they were fully aware of what Bill calls an "open revolt against the Attorney General."  Finally, my own assessment of the prospects of the Smarter Sentencing Act becoming enacted law is sure to be impacted by the nature and dynamics of any on-going  "open revolt against the Attorney General" by hundreds of federal prosecutors.

A few recent related posts:

January 31, 2014 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism"

The title of this post is the title of this intriguing new article recently posted on SSRN and authored by Robert Smith, Justin Levinson and Zoe Robinson. Here is the abstract:

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system.

Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.

January 31, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Thursday, January 30, 2014

Unsurprisingly, AG Holder authorizes pursuit of death penalty against Boston bomber

I just received via e-mail this notice from DOJ, titled "Statement by Attorney General Eric Holder Regarding the Case of Dzhokhar Tsarnaev."  Here is the full text of the linked material:

Attorney General Eric Holder today released the following statement regarding the case of Dzhokhar Tsarnaev:

“After consideration of the relevant facts, the applicable regulations and the submissions made by the defendant’s counsel, I have determined that the United States will seek the death penalty in this matter. The nature of the conduct at issue and the resultant harm compel this decision.”

Some prior related posts:

January 30, 2014 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Diverse perspectives on victims having diverse perspectives on sentencing

Regular readers know I am a fan and supporter of giving crime victims the opportunity and right to have their voices heard throughout the sentencing process.  Some of the reasons why are effectively articulated in a recent post by Paul Cassell at The Volokh Conspiracy, "Why crime victims need their own voice in the criminal justice process." Here is an excerpt from the post responding to a common concern expressed by defense attorneys (and noting one of my own recent posts):

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key.  Doug Berman has made exactly this same point about U.S. v. Paroline & Amy, explaining in a recent post that shifting our focus away from purely punitive criminal justice responses is why he is cheering for Amy to win a complete victory before the Supreme Court.   My former law clerk and now federal defender, Benji McMurray, has expanded on this point at length in “The Mitigating Power of a Victim Focus at Sentencing,” 19 FED. SENT’ING RPTR. 125 (2006).

A notable example of the potential mitigating impact of victim input about sentencing is emerging in a Colorado capital case, about which Andrew Cohen has written in this notable new Atlantic piece headlined "When Victims Speak Up in Court — in Defense of the Criminals; A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son." Here is how the article starts:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases — judge, prosecutor, and defendant — now almost always resembles a quartet.  Victims have a voice — and they use it. All 50 states now allow some form of "victim impact statement" at sentencing.  Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact.  But these efforts almost always fail.  Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state?  What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son?  What responsibility does the prosecutor have in that case? What obligations do the courts have?  Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child.  Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer.  The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues.  But I haven't been able to find a single victims' right advocate who believes that's true.

Of course, it is not always (and perhaps not even often) that a victim's voice will be for realtive leniency, as this local news segment from Massachusetts highlights.  This piece is headlined "Victims' Families Want Tougher Sentencing For Juvenile Offenders," and it sets up recorded interviews this way:

The judicial system is designed to disregard emotion. Only the letter of the law matters. But a ruling handed down last week by the state Supreme Judicial Court stirred up a lot of emotion. Following the lead of the US Supreme Court, the SJC ruled mandatory life sentences for juvenile murderers are unconstitutional. The decision set the minimum time served at 15 years, and now the families of some murder victims are making an impassioned plea to keep those killers locked up longer.

January 30, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 29, 2014

SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:

The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.

Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.

Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.

Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.

A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.

On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.

Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.

I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.

Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.

UPDATE:  I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.

ANOTHER UPDATE:  This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:

Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.

Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....

Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....

Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.

Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

January 29, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack