Tuesday, December 16, 2014

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

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

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

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

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

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

Download Motion to postpone federal MJ sentencing in California

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

Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"

Download (3)I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum.  This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:

This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.

Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.

December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Why Plea Bargains are Not Confessions"

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN. Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

December 16, 2014 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Monday, December 15, 2014

NJ Supreme Court clarifies legitimacy and importance of considering post-offense conduct at sentencing

This local article, headlined "Court: ‘Post-offense conduct’ must be gauged at sentencing," provides an effective summary of a notable New Jersey Supreme Court ruling today. Here is the start of the article:

A man who pleaded guilty to a drug offense was entitled to have the positive changes he made in his life between the time of his plea and sentencing considered by the judge determining punishment, the state Supreme Court ruled Monday.

The state’s highest court ruled that sentencing judges must consider relevant, post-offense conduct when they weigh aggravating and mitigating factors during their sentencing analysis. In the Morris County case involving Joseph M. Jaffe, now 42, and last of Brick, the sentencing judge told his lawyer in 2012 that New Jersey law precluded him from considering Jaffe’s conduct in the year-long span between his guilty plea in August 2011 and sentencing in August 2012.

“In conclusion, the trial court should view a defendant as he or she stands before the court on the day of sentencing,” the Supreme Court said in its opinion, released Monday. “This means evidence of post-offense conduct, rehabilitation or otherwise, must be considered in assessing the applicability of, and weight to be given to aggravating and mitigating factors,” the court said.

The full unanimous opinion in New Jersey v. Jaffe, No. A-12-13 (N.J. Dec. 15, 2014), is available at this link.  Here is how the opinion gets started:

Defendant Joseph M. Jaffe received a three-year state prison sentence almost a year after pleading guilty to an accusation charging him with third-degree conspiracy to possess cocaine with the intent to distribute.  At sentencing, defense-counsel asked the court to consider defendant’s rehabilitative efforts since he was arrested and charged. The trial court declined to weigh such evidence in assessing mitigating factors, concluding that applicable law did not allow him to consider “post[-]offense conduct.” In light of our recent holding in State v. Randolph, 210 N.J. 330 (2012), that a defendant should be assessed as he stands before the court on the day of sentencing, we conclude that the sentencing court must consider a defendant’s relevant post-offense conduct in weighing aggravating and mitigating factors.

A judge’s sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing.  Because we decide here that the trial court must consider at sentencing evidence of a defendant’s post-offense conduct, we are compelled to remand for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors.

December 15, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Police prevail 8-1 in first notable criminal justice merits ruling of SCOTUS term

The Supreme Court completed its last bit of formal action for the year this morning with an orders list and a few opinions.  One opinion is a bit of a holiday gift for criminal justice fans: a relatively short ruling in Heien v. North Carolina, No. 13–604 (S. Ct. Dec. 15, 2014) (available here), concerning Fourth Amendment application.  Here is the alignment of the Justices and the start of the majority opinion:

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion.

The Fourth Amendment prohibits “unreasonable searches and seizures.”  Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake.  An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat.  The driver has not violated the law, but neither has the officer violated the Fourth Amendment.

But what if the police officer’s reasonable mistake is not one of fact but of law?  In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required.  The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.  We hold that it can.  Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

Obviously, Heien is not a sentencing case or even an issue that I could see readily having some sentencing echoes.  But the alignment of the Justices on this matter might lead some to identify additional tea leaves to read about the various criminal justice perspectives embraced by various members of the Roberts Court.

December 15, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation

This recent article from the Washington Post, headlined "Early federal sentencing recommendation for McDonnell: At least 10 years in prison," spotlights the seemingly severe sentence recommended by the federal sentencing guidelines for a former Governor's corruption.  Among other notbale aspects of this high-profile sentencing story is the fact that former Virginia Gov Bob McDonnell is now facing a guideline sentencing range that is more than three to four times longer than the longest possible sentence he would have faced had he been willing to plead guilty on terms urged by federal prosecutors.  Here are the notable details at this stage of a developing high-profile sentencing story:

The guidelines recommended by the U.S. probation office are preliminary, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said that Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommendations more than 70 percent of the time in recent years. “It’s of critical importance,” said Scott Fredericksen, a white-collar criminal defense lawyer. “The fact is, the vast majority of times, courts follow those recommendations closely.”

The matter is far from settled. The probation office recommended a punishment from 10 years and a month to 12 years and 7 months. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime, the defendant’s role and the amount of loss. The judge has yet to see the arguments from each side.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury items. McDonnell is scheduled to be sentenced Jan. 6. His wife’s sentencing is scheduled for Feb. 20, and her guideline range is expected to be lower than her husband’s. The probation office has not yet filed a report concerning her.

It is unclear how the probation office determined that the former governor’s crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to The Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Star Scientific, Williams’s dietary-supplement company, at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife....

White-collar criminal defense lawyer Matthew Kaiser said McDonnell’s range probably was increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also probably faulted McDonnell because his testimony was contrary to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — although Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to persuade Spencer to modify the recommended range.

Even then, Spencer is not bound by the guideline. Defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document outlining the sentence they believe McDonnell should receive and why. It is unclear whether their efforts to move Spencer away from the probation office’s recommended range will be fruitful.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. In about 21 percent of cases, they imposed sentences below the guideline range without a request from prosecutors to do so. Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.... Brian Whisler, a defense lawyer who used to work as a federal prosecutor in

Richmond, said that Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie, represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9.5 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressman William J. Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

December 15, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1) | TrackBack

Sunday, December 14, 2014

Detailing the dysfunction of Pennsylvania's death penalty system

Download (2)This lengthy local article, headlined "Capital punishment in Pennsylvania: When death means life: Commonwealth's death penalty system called expensive and dysfunctional," provide a review of how the Keystone State has a capital punishment system that seems to function as if it were operated by the Keystone Cops. Here are excerpts from the article, which is the first is an extended series:

Pennsylvania's death penalty has cost taxpayers more than $350 million for a dysfunctional system that has sentenced hundreds but hasn't executed anyone in 15 years, a Reading Eagle analysis has found.  The newspaper analysis comes three years after state lawmakers called for an intensive report on Pennsylvania's death penalty, and as a Montgomery County lawmaker maps out a proposal to abolish the system.

The long-overdue report is at least several months away from being issued. There still has been no reckoning of the system's massive financial or psychological cost — including the immeasurable agony of justice-seeking family members and the pain of families waiting for condemned relatives to be executed. "My sister didn't have a choice about when her life ended. Why should he?" said Diane Moyer of Robesonia, referring to convicted killer Glenn Lyons of Reading.

Lyons is one of 185 condemned inmates, making Pennsylvania's death row the fifth largest in the nation.  He's also one of 12 death row inmates prosecuted for murders committed in Berks County, which along with York County has the second-highest number of death row inmates in the state behind Philadelphia's 69.  It was 1937 when Pennsylvania last executed someone for a murder that took place in Berks.

Observers of the state's system both locally and nationally agreed it is deeply flawed. It is likely to get even more scrutiny as prosecutors move ahead with a death penalty case against Eric Frein, accused of ambushing and murdering a state trooper this year....

The newspaper's cost estimate is likely a conservative number.  That's because the estimate, which relies on a 2008 Maryland study by the Urban Institute, was calculated using the Pennsylvania inmates now on death row.  The estimate does not account for unsuccessful death penalty cases tried by prosecutors, nor does it include death row inmates whose sentences were overturned on appeal.

The 2008 study — which produced findings similar to other state studies — found that Maryland spent an average of $1.9 million more on cases that led to death sentences than on cases where the death penalty could have been sought but was not.  At least two experts, including the researcher of the Maryland report, said the study was a fair comparison for estimating the cost to Pennsylvania taxpayers.  Applying the Maryland per-case figure to Pennsylvania's current 185 death row inmates yields a Pennsylvania cost of $351.5 million....

The state has executed three men, all of whom gave up their appeals, since the U.S. Supreme Court reinstated the death penalty in 1976.  But with so few executions among the 429 death warrants Pennsylvania governors have signed since 1985, experts say it's critical lawmakers know the cost to justify budget expenses with a projected $1.85 billion state shortfall in the upcoming fiscal year.  So far, the death penalty hasn't been part of the budget debate.

For the loved ones of the victims, like Moyer, the financial cost of the death penalty is outweighed by the emotional toll of likely never having the killer's execution carried out. Lyons used two kitchen knives to stab Leibig, 45, of Millcreek Township, Lebanon County, again and again, investigators said.  The brutal attack lasted up to 15 minutes.  Lyons, now 49, was convicted and sentenced to death by a Berks jury, but claims he didn't kill Leibig.

The state Supreme Court denied his appeal in 2013, and his execution was set for August, but a federal judge granted him a stay in July, and his appeal process continues.  Leibig's family is frustrated and disappointed, knowing the state may never follow through with his execution.  "He'll keep fighting and playing the system," Moyer said.  "He had a fair trial, and he was guilty.  Put him to death. Give him the injection."...

A death penalty that doesn't actually execute people frustrates those on both sides of the debate.  Death penalty proponents blame an endless and costly appeals process.  Opponents criticize a system with too little funding for poor defendants....

At least one Berks judge who once supported the death penalty has had a change of heart. The judge, who asked not to be identified, had thought execution was a just punishment for the state's worst offenders and a deterrent to others.  But after seeing how cases continuously circle the courts, the judge now thinks the death penalty is a waste of time and money and is unnecessarily difficult on the victim's loved ones holding out hope for an execution.

"It's horrible for the families," the judge said.  Death penalty rulings aren't foolproof and should be scrutinized, but there should also be a limit on appeals, the judge said. "Now there is hearing after hearing.  It never ends," the judge said....

"There is a problem with a law that is never carried out," he said. State Rep. Thomas R. Caltagirone, a Reading Democrat, said he's heard from victims' families how hard it is to sit and wait for the death penalty to be carried out.  "They say: 'We lost a loved one. Why is he still living? Where is the justice?'" Caltagirone said.  "And victim's rights groups are livid about the endless appeals."  But Caltagirone also said he wonders whether it's appropriate for the state to execute someone.  "I'm kind of torn on it," he said.

More than a dozen states have analyzed death penalty costs.  Some states found the costs nearly 50 percent to 70 percent higher than non-death penalty cases.  While the costs vary across the U.S., all found capital trials more expensive.  The reason?  Mostly because the process is more complicated at every point in the case.  A death penalty case involves more attorneys, witnesses and experts.  Jury selection is long, as are the trials.  Also the cases usually have more pre-trial motions and require a separate trial for sentencing.

Incarcerating death row inmates in solitary confinement is also expensive — about $10,000 more a year than inmates serving a life sentence, according to the Pennsylvania Department of Corrections.  And, the majority of death penalty trials on appeal are found to be flawed, some significantly, and must be redone, adding to the price tag.

The state has been studying a laundry list of issues since 2011 when lawmakers directed the Joint State Government Commission to research capital punishment.  Berks officials did not know what the costs of trying capital cases are to taxpayers. "Definitely, the death penalty extremely strains our resources," Adams said.  "There's no way that we can put a financial number to that."...

"You can't choose to do it and not pay for," said Marc Bookman, a former public defender and director of the Atlantic Center for Capital Representation in Philadelphia, a nonprofit resource center.  "It's really expensive to do it properly and it's even more expensive to do it incorrectly," he said.

Last year, Maryland became the 18th state to abolish capital punishment.  Maryland Gov. Martin O'Malley cited the cost — roughly three times as much as life without parole — as one of the factors for repealing the death penalty.  John Ramon, author of "The Cost of the Death Penalty in Maryland," said the costs to Pennsylvania taxpayers are likely comparable, assuming trial and incarceration expenses are similar. "It's not as big as an assumption as it sounds," Ramon said....

Knowing the cost, Ramon and others said, changes the conversation on a very polarizing issue. "I think it changes the nature of the debate because what it's saying is let's not just ask if the death penalty is better than not having the death penalty," Ramon said. "It's saying, given the death penalty is far more expensive, is it still worth having?"

December 14, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Texas top court rules juveniles getting transferred to adult court too readily

As reported in this Texas Tribune article, headlined "CCA Offers Guidance to Courts Trying Teens as Adults," the top criminal court in Texas issued a significant ruling earlier this week about bringing juvenile offenders into the adult system. Here are the details:

A Houston teen sentenced to 30 years in prison should not have been tried as an adult, the state's highest criminal court ruled Wednesday in a decision calling for greater judicial scrutiny before young defendants are transferred into the adult court system.

"The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule," Court of Criminal Appeals Judge Tom Price wrote in the majority opinion, agreeing with an earlier ruling by the 1st Court of Appeals in Houston....

Trial judges can transfer a juvenile's case to adult court after considering criteria including whether the crime was against a person or property, the juvenile defendant's maturity level and previous criminal record. The court's ruling zeroes in on how prosecutors prove a juvenile has sufficient maturity to be tried as an adult. In Moon's case, prosecutors called one witness, the arresting officer.

In Wednesday's opinion, Price, citing a 1995 change in the law, said that a juvenile court should "take pains to 'show its work' in coming to that certification decision.

"This legislative purpose is not well served by a transfer order lacking in specifics that the appellate court is forced to speculate as to the juvenile court’s reasons for finding transfer to be appropriate or the facts the juvenile court found to substantiate those reasons," Price wrote.

The Houston Chronicle has reported that when Moon was certified, Harris County judges were granting prosecutors' requests for certifications about 95 percent of the time.

The Court of Criminal Appeals' decision sends Moon's case back to Harris County, where a spokesman for the prosecutor's office said they were "disappointed" about the court's ruling. "But we're going to revisit the case, and there's a possibility we will try to recertify him," said Jeff McShan, spokesman for the Harris County district attorney's office.

"It's a nice Christmas present," said Jack Carnegie, Moon's attorney, adding that the ruling gives trial courts better guidance on what they need to do certify juvenile defendants. "This is a roadmap for how you have to do it now."

The full 40-page Texas ruling in this case is available at this link.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Senator Grassley introduces juvenile justice bill showing eagerness to do bipartisan reforms

This article from The Hill, headlined "Next Judiciary chairman eyes treatment of minors," provides an encouraging sign that the incoming new leadership in the Senate may be eager to work on at least some bipartisan federal criminal justice reforms. Here are the details:

Sens. Chuck Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.) introduced a bill Thursday that would update national standards covering how the justice system treats minors.

With Grassley preparing to take over as chairman of the Senate Judiciary Committee in the next Congress, the move is an early signal of the committee’s potential criminal justice agenda. Grassley has been particularly supportive of new accountability measures that will be included in the bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA).

“The Juvenile Justice and Delinquency Prevention program helps in preventing at-risk youth from entering the system and helps those in the system become valuable members of communities across the country,” Grassley said in a statement. “This bipartisan bill will be a good starting point for reauthorizing this important program as we begin a new Congress.”

One advocate said Thursday that Grassley’s sponsorship will be a boon for the bill, but that the measure still has a long journey to becoming law. “I think as head of Judiciary, with his name on it, that is going to be a huge help,” said Marcy Mistrett, the CEO of the Campaign for Youth Justice.

The bill, which will not see any movement before the end of the current Congress, aims to beef up juvenile justice standards that haven’t been updated in more than a decade. The juvenile system is estimated to detain 60,000 minors on any given night.

“This legislation will strengthen the main protections of the JJDPA, and improve the conditions and practices that can determine whether offenders leave our justice system as productive members of society,” Whitehouse said in a statement.

One update would make it harder for states to lock up children who have committed “status offenses” that would not be an offense if they were an adult, like running away from home or skipping school. Another update would require that states do more to make sure they are not confining minors near adults. It would also give states new direction on how to reduce racial and ethnic disparities in the juvenile justice system....

The bill comes at a moment when there is bipartisan support for certain reforms to the criminal justice system. Grassley has had a historical interest in juvenile justice. But it is not known if he will have the committee tackle some of the thorny problems in the adult criminal justice system, which encompasses everything from policing to prison conditions.

The United States imprisons more people than any other nation in the world, something a smattering of lawmakers have been moving to change. Sens. Mike Lee (R-Utah) and Dick Durbin (D-Il.) have introduced a bill that would make small changes to the federal mandatory minimum sentences that have led to black Americans being imprisoned at disproportionate rates. It’s received support from big names both sides of the aisle, including Sens. Rand Paul (R-Ky.), Ted Cruz (R-Texas) and Elizabeth Warren (D-Mass.). But Grassley opposes the measure and will decide whether it comes up for a vote on the Judiciary Committee, where it would likely pass.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, December 11, 2014

"As Though They Were Not Children: DNA Collection from Juveniles"

The title of this post is the title of this notable new paper by Kevin Lapp now available via SSRN. Here is the abstract:

Law enforcement craves data.  Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles.  DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted.  So alluring is DNA collection that the practice has rapidly expanded to juveniles.  The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system.  A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection.  Law enforcement also seeks DNA samples from juveniles based on their consent.

This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law.  It then situates DNA collection from juveniles within the law’s longstanding and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice.  Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that DNA collection from juveniles based on contact with the criminal justice system is not reasonable and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced.  Many of its benefits, including deterrence, are lost with regard to juveniles.  The Article calls for the prohibition on DNA collection following an adjudication of delinquency or an arrest, and a ban on consent collection from juveniles.  This will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.

December 11, 2014 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, December 10, 2014

Second Circuit panel finds evidence insufficient to support two major insider trading convictions

There is big news in the white-collar crime (and sentencing?) world this morning coming out of New York thanks to the Second Circuit's significant new opinion in US v. Newman, No. 13‐1837 (2d Cir. Dec. 10, 2014) (available here).  This New York Times article about the ruling helps spotlight why this is Newman ruling is a very a big deal:

A federal appeals court on Wednesday overturned two of the government’s signature insider trading convictions, a stunning blow to prosecutors and their campaign to root out illegal activity on Wall Street.

In a 28-­page decision that could rewrite the course of insider trading law, sharply curtailing its boundaries, the United States Court of Appeals for the Second Circuit in Manhattan tossed out the case against two former hedge fund traders, Todd Newman and Anthony Chiasson. Citing the trial judge’s “erroneous” instruction to jurors, the court not only overturned the convictions but threw out the cases altogether....

The unanimous decision – the first higher court rebuke of an insider trading case filed by Preet Bharara, the United States attorney in Manhattan – could portend a broader revisiting of Mr. Bharara’s insider trading crackdown. It will also offer a blueprint for traders to defend future insider trading cases, a development that is likely to unnerve prosecutors while delighting the defense bar.

Here are a few paragraphs from the start of the Newman opinion:

Defendants‐appellants Todd Newman and Anthony Chiasson appeal from judgments of conviction entered on May 9, 2013, and May 14, 2013, respectively in the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) following a six‐week jury trial on charges of securities fraud....

The Government alleged that a cohort of analysts at various hedge funds and investment firms obtained material, nonpublic information from employees of publicly traded technology companies, shared it amongst each other, and subsequently passed this information to the portfolio managers at their respective companies.    The Government charged Newman, a portfolio manager at Diamondback Capital Management, LLC (“Diamondback”), and Chiasson, a portfolio manager at Level Global Investors, L.P. (“Level Global”), with willfully participating in this insider trading scheme by trading in securities based on the inside information illicitly obtained by this group of analysts.   On appeal, Newman and Chiasson challenge the sufficiency of the evidence as to several elements of the offense, and further argue that the district court erred in failing to instruct the jury that it must find that a tippee knew that the insider disclosed confidential information in exchange for a personal benefit.  

We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.  Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against Newman and Chiasson for two reasons.    First, the Government’s evidence of any personal benefit received by the alleged insiders was insufficient to establish the tipper liability from which defendants’ purported tippee liability would derive.    Second, even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chiasson knew that they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties. 

 Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Though this Newman opinion does not discuss formally sentencing issue, I cannot help but think that modern white-collar sentencing realities might be playing a role (perhaps a significant role) in the review and ultimate rejection of insider-trading convictions here. Both defendants appealing in this case were sentenced to a significant number of years in prison, and appellate judges are surely aware of how high the stakes now are for white-collar defendants subject to novel and aggressive prosecutorial practices.

December 10, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (8) | TrackBack

Tuesday, December 09, 2014

"Structuring Pre-Plea Criminal Discovery"

The title of this post is the title of this notable new article by Daniel McConkie Jr. now available on SSRN. The piece spotlights the various links between criminal discovery rules and sentencing procedures and outcomes, and here is the abstract:

Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.

This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide.  Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence.  The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime.  But defendants who plead guilty effectively act as their own judge and jury.  Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing.

The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process.  This article proposes tailoring that test to the pre-plea discovery context.  The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are there clear rules that allow judges, before a guilty plea, to regulate prosecutors’ decision not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society.

One hopeful development is that several district courts, pursuant to Congressionally-granted authority, have promulgated local rules for pre-plea discovery.  Although the Constitution does not require it, I argue that Congress should adopt several of these time-tested rules to give both clear standards to prosecutors and authority to judges to enforce liberal pre-plea discovery.

December 9, 2014 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Scheduled Georgia execution raising again issues of poor lawyers and intellectual disability

This New York Times article reports on the legal issues surrounding the fate of a condmned murderer scheduled to be executed tonight in Georgia.  Here are the basics:

A parole panel in Georgia refused on Monday to grant clemency to a man who is scheduled to die by lethal injection on Tuesday evening, apparently unpersuaded by evidence that he was ineptly represented at trial by a drunken lawyer, had an exceptionally harsh childhood and has a severe intellectual deficit.

But in what could be a legal decision with wider effects, lawyers for the man, Robert Wayne Holsey, were still waiting for the Georgia Supreme Court to respond to a last-­minute appeal. They argued that the state’s standard for determining intellectual disability in capital cases — the country’s most stringent — runs afoul of a recent decision by the United States Supreme Court.

Mr. Holsey was convicted of armed robbery and murder in 1997 and sentenced to death. He had robbed a convenience store and shot and killed a pursuing officer.  His trial lawyer later admitted that at the time he was drinking up to a quart of vodka daily and facing theft charges that would land him in prison. He said he should not have been representing a client.

On appeal, a Superior Court judge ruled that during the penalty phase of Mr. Holsey’s trial, his lawyer had failed to effectively present evidence that might have forestalled a death penalty, including facts about Mr. Holsey’s history and his intellectual deficit. That judge called for a new sentencing trial.  But the Georgia Supreme Court reversed the decision, ruling that the jury had heard enough evidence about mitigating factors during the initial trial....

That Mr. Holsey had received ineffective counsel seemed clear, said John H. Blume, a professor and director of the death penalty project at the Cornell Law School. “But the quality of representation in capital cases is often so low,” he said, “that it’s difficult to shock the courts.”

He and other legal experts said a more promising tack — if not for Mr. Holsey, then for defendants in the future — is the challenge to Georgia’s standard of proof for intellectual disability.  The state requires defendants to prove that they are intellectually disabled “beyond a reasonable doubt.”  For those near the borderline, often described as an I.Q. around 70, that standard is nearly impossible to meet.  Many legal experts think it violates a Supreme Court ruling last May that said states cannot create “an unacceptable risk that persons with intellectual disability will be executed.”

In other states, either a “preponderance of evidence” or “clear and convincing evidence” is necessary to establish disability, said Eric M. Freedman, a law professor and death penalty expert at Hofstra University. Both are less stringent standards than the one used in Georgia.

In a landmark decision in 2002, the United States Supreme Court barred the execution of mentally disabled people, but largely left it to the states to set the criteria. In its decision in May, the court added new conditions, ruling in Hall v. Florida that the state could not rely on a simple I.Q. cutoff but rather must take a broad look at a person’s ability to function.

Mr. Holsey’s I.Q. has been measured at around 70.... The state, he said, had argued that because he could drive a car and had a girlfriend, Mr. Holsey could not be disabled....

Constitutional scholars say it is most likely that at some point either the Georgia Supreme Court or the federal Supreme Court will strike down the standard as an unreasonable outlier. “You’ve got a national constitutional rule that people with intellectual disability shouldn’t be executed, but it’s being applied differently in different states,” Mr. Blume of Cornell said

December 9, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, December 08, 2014

"Are prosecutors above the law?"

The title of this post is the title of this lengthy new commentary at Daily Kos.  It starts and ends this way: 

There is something terribly wrong with a justice system that allows an inordinate amount of power to reside in the hands of one office that not only has no real accountability or oversight, but is insulated from the consequences of its actions by court-granted immunity. And no, I am not talking about Supreme Court justices, but about prosecuting attorneys.

The prosecuting attorney — whether local, state, or federal — has an incredible amount of authority and discretion in how to exercise that authority.  The prosecuting attorney decides how many, and what kind of charges are brought in criminal prosecutions. The prosecuting attorney has the ability to directly charge a crime, or to use a grand jury for more serious crimes, to indict a defendant.  The prosecuting attorney has the authority to offer plea bargains.

And while there should be some type of accountability other than election, and while the fiction exists that prosecuting attorneys could be disbarred, in reality, they face little punishment for abusing their discretion or authority....

Prosecutors do need some level of immunity in order to properly perform their duties. And they require prosecutorial discretion in order to keep the wheels of justice turning. We have seen how efforts to restrict judicial discretion resulted in mandatory minimum sentences, removing a judge's discretion in sentencing entirely.  (Now it is the prosecutor who determines the sentence by exercising his discretion in deciding what charges an offender will face.)  But there does need to be some limit, some oversight to a prosecutor's office.

If grand juries only exist to give the result the prosecutor desires, what is the point of using them?  Initially, they were to allow citizens some input into the system, but as that system has become more complicated and more laws have been enacted to criminalize behavior, most citizens do not have the knowledge necessary to fulfill that role.  Since all of their actions are taken in secret, and since they are never allowed to reveal what happened within the jury room, it is impossible to determine if they are working the way they were intended.

The most powerful office in the justice system, whose decisions carry the greatest impact and consequence, is still occupied by human beings, subject to all of the normal human failings.  In order to ensure that the power is used properly, sunshine, oversight, and accountability must become part of the system.

December 8, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, December 07, 2014

Two astute commentaries about California's emerging Prop 47 issues

0Two local California paper have two distinct commentaries about Proposition 47 and its aftermath. Both are worth reading, and here are links and excerpts from the start and end of each piece:

Opinion by Alexandra Natapoff, headlined "Prop 47 empties prisons but opens a can of worms":

California is doubling down on decriminalization. Three weeks ago, the passage of Prop. 47 converted a half-dozen felonies to misdemeanors. In 2011, marijuana possession was reclassified from a misdemeanor to an infraction without jail time. If Rip Van Winkle fell asleep a decade ago at the height of California’s prison boom and woke up this morning, he’d quickly recognize this as a scramble to undo decades of harsh and expensive policy.

The state is not alone — we are seeing a seismic shift in how the United States handles punishment, especially with respect to misdemeanor decriminalization. Marijuana is the most famous example, but many states are eliminating jail time for other minor offenses, such as driving violations and public order crimes, and replacing them with so-called “nonjailable misdemeanors,” “nonarrestable” or “fine-only” offenses, and “civil infractions.”

There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....

It’s often hard to tell whether criminal justice reform is real progress or a shell game. Is California actually reducing incarceration, or is it quietly shifting prisoners around or repackaging punishment so as to avoid appointing lawyers for poor people? Decriminalization offers great promise, but it needs to be carefully monitored to make sure it lives up to its tantalizing name.

Editorial by Los Angeles Daily News, headlined "Prop. 47 sentencing changes are working out just as feared":

The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.

With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.

The well-intended but dangerously flawed Prop. 47 passed easily with 59 percent of the vote. Now state and local legal authorities, including those in Los Angeles and San Bernardino counties, are having to confront the consequences....

In Humboldt County, the release of 35 percent of the county jail population has been accompanied by a reported rise in burglaries, thefts and vandalism. If that becomes a state trend, so much for Prop. 47 supporters’ title for the measure: The Safe Neighborhood and Schools Act.

It’s possible Prop. 47’s troubles can be worked out and it will achieve its goals. When FiveThirtyEight.com’s data journalists analyzed outcomes in states that have undertaken similar sentencing reforms, they found more positive than negative results at reducing prison populations and incarceration costs.

But the results in California will bear watching. Gov. Jerry Brown, who had planned to issue prison-reform proposals in January, other state officials and legislators must be ready and willing to act to make this work. Of course, if lawmakers had been willing to tackle the issue earlier, we wouldn’t be in this situation now.

December 7, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Former basketball star taking (wild?) shot at fighting loss calculation in federal fraud sentencing

TateThis notable article from Connecticut reports that a notable fraud defendant is going to be representing himself as he agrues against how loss is being calculated and used against him in his upcoming federal sentencing.  Here are some of the interesting details:

Ever since being convicted on four felony counts in a real estate scheme, former University of Connecticut basketball star Tate George has been complaining about his legal representation.  He criticized his trial attorney, saying he didn't listen to requests for calling witnesses and other strategies.

After dropping his first attorney, George briefly switched to another, who is also out of the picture.  Now George has received permission from a federal judge to represent himself at his sentencing.

A first-round NBA draft pick, George has more basketball experience than legal experience.  He is best known for hitting "The Shot" at the Meadowlands arena in New Jersey in the final second to defeat Clemson in the NCAA playoffs in 1990, one of the most stunning victories in UConn basketball history.

Before his request was granted this week, federal prosecutors warned George in court papers about "the dangers and perils of self-representation."  They quoted the saying that "he who represents himself has a fool for a client."  Prosecutors told George, "There are many complex rules in court, and that most non-lawyers, including yourself, cannot know all of these rules."

But George, 46, has gone his own way before.  After expressing dissatisfaction with his trial attorney, George began sending letters directly from his prison cell to the federal judge instead of sending them through his attorney.  In at least five letters to U.S. District Court Judge Mary L. Cooper in Trenton, George proclaimed his innocence.

"I understand that my life has no value to all those who have gone about defaming my name, but I beg to differ and will continue to fight to prove my innocence," George wrote to the judge.  "Again, for the record, even though the government refuses to want to hear or admit to the truth above their lies to make me look guilty, there are no losses to report at this time, which means there is no crime or victims.  PERIOD! AS I HAVE SAID, BUT NO ONE SEEMS TO BE LISTENING, THERE ARE MONIES OWED YES, BUT NOT LOSSED!"

As part of his legal strategy, George is saying that the $250,000 investment by former UConn basketball star and NBA player Charlie Villanueva that was never repaid should not be counted as a financial loss.  Since he has promised to repay Villaneuva, George says there is no victim and no loss....  

George has said he was upset that his attorney, David E. Schafer, a federal public defender, said that investors in his case had lost $833,000 when George maintained that the actual loss was zero.  Federal prosecutors say the investors lost more than $2.5 million. At one point, a prosecutor described George as a "baby Madoff," referring to the massive Ponzi scheme operated by now-imprisoned New York City financier Bernie Madoff in which investors lost billions of dollars in a long-running scheme.

George was convicted in September 2013 and could face as many as nine years in prison when he is sentenced. Although he was convicted more than a year ago, his sentencing has been postponed multiple times.

December 7, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 05, 2014

SCOTUS takes up new capital procedures case from Louisiana

As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on three new cases, one of which involves death penalty procedure.  Here is Lyle Denniston's description of Brumfield v. Cain, the new capital case on the Supreme Court's agenda:

In accepting a Louisiana murder case for review on Friday, the Court agreed to sort out whether an individual accused of a capital crime has a right to an independent court hearing on whether he suffers from mental incapacity, and thus could not be sentenced to death.  In the case of Brumfield v. Cain, the issue of Kevan Brumfield’s mental state was decided as an issue at the penalty phase of his murder trial, rather than at a separate inquiry.

Brumfield was sentenced to death for the shooting death of an off-duty Baton Rouge, La., police officer during an attempted robbery at a night deposit box at a bank in 1993. The officer had used a police car to transport a store manager on a trip to the bank to deposit the store’s proceeds.  Brumfield was charged with killing the officer and wounding the store manager.

In taking the case to the Supreme Court, Brumfield’s lawyers argued that he has a serious defect in his intellectual capacity, but that state courts dealt with that only as an issue during his death sentencing hearing to determine whether it should mitigate the penalty.  The petition contended that he was entitled to a separate hearing on that question.  His petition raised a separate question on whether Brumfield was entitled to have the state pay for gathering evidence of his mental incapacity.

UPDATE: A lot more information about this crime and the defendant in this new SCOTUS case can be found in this local article, headlined "U.S. Supreme Court to hear mental retardation claim of Baton Rouge convicted killer: Mental retardation, execution eligibility at heart of the matter."

December 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

District Judge pushes federal prosecutors to back off extreme trial penalty sentence

As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:

Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.

Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday.  But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.

Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty.  "He won't look with pride on what you're doing here today," Sullivan said....

In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks.  Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.

In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.

They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.

After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.

December 5, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, December 04, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

The title of this post is the title of this notable and timely new paper by Scott Sundby now available via SSRN. Here is the abstract:

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack