Tuesday, August 19, 2014

Notable new follow-ups to recent ugly executions in Arizona and Ohio

Coincidentally, this week has brought two distinct follow-up article examining the backstories that may have contributed to two distinct ugly executions in Arizona and Ohio.  The Arizona follow-up story comes via this new New York Times article headlined "Arizona Loose With Its Rules in Executions, Records Show," and it starts this way:

In an execution in 2010 in Arizona, the presiding doctor was supposed to connect the intravenous line to the convict’s arm — a procedure written into the state’s lethal injection protocol and considered by many doctors as the easiest and best way to attach a line. Instead he chose to use a vein in an upper thigh, near the groin. “It’s my preference,” the doctor said later in a deposition, testifying anonymously because of his role as a five-time executioner. For his work, he received $5,000 to $6,000 per day — in cash — with two days for practice before each execution.

That improvisation is not unusual for Arizona, where corrections officials and medical staff members routinely deviate from the state’s written rules for conducting executions, state records and court filings show. Sometimes they improvise even while a convict is strapped to a table in the execution chamber and waiting for the drugs coursing through his veins to take effect.

In 2012, when Arizona was scheduled to execute two convicted murderers, its Corrections Department discovered at the last minute that the expiration dates for the drugs it was planning to use had passed, so it decided to switch drug methods. Last month, Arizona again deviated from its execution protocol, and things did not go as planned: The convicted murderer Joseph R. Wood III took nearly two hours to die, during which he received 13 more doses of lethal drugs than the two doses set out by the state’s rules.

The Ohio follow-up story comes via this new New Republic article headlined "Exclusive Emails Show Ohio's Doubts About Lethal Injection: The state worried new drugs could make prisoners "gasp" and "hyperventilate" — and used them anyway." Here is how it gets started:

In July 23, Arizona took 117 minutes to execute a convicted murderer named Joseph Rudolph Wood III. It was not the nation’s first execution to last that long. In September 2009, Romell Broom entered the Ohio death chamber and exited two hours later still breathing — the only inmate in U.S. history to survive a lethal injection. The executioners had scoured his arms, legs, hands, and ankles for veins in which to stick their needles. But they repeatedly missed the vessels with the IVs. After at least 18 failures, Ohio had no choice but to cancel the execution.

In Wood’s execution, the trouble began when the drugs began to flow.  Arizona’s executioners first injected Wood with a combination of midazolam and hydromorphone, two drugs they had never used before in an execution. When the first dose failed to stop his heart, the executioners administered a second.  And then a third. The execution team injected 15 doses in total before a doctor finally pronounced death. An Arizona Republic reporter witnessing the execution said Wood gasped more than 640 times and that he “gulped like a fish on land.”

IDespite their different problems, the attempted execution of Broom and the execution of Wood are connected by more than just their lengths.  Had executioners in Ohio been able to insert IVs into Broom’s veins, Wood’s execution might have gone much more smoothly. That’s because the Broom debacle led Ohio to write a “Plan B” for lethal injections, introducing into the death chamber for the first time the untested drugs Arizona would use years later to kill Wood.  And emails I obtained from Ohio reveal some of the state's internal debates and concerns about these drugs—including fears that an inmate could “gasp” and “hyperventilate” as he died.

IDoctors warned from the beginning that midazolam and hydromorphone could create “a distasteful and disgusting spectacle.”  And yet the drugs spread from Ohio across the country, revealing the lengths states will go to in order to carry out death sentences despite constant IV trouble, drug shortages, and problematic executions.

August 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 18, 2014

More evidence of the poor funtioning of California's crime-and-punishment policies and practices

La-me-ff-0817-early-release-pictures-012Over the weekend, the Los Angeles Times published this lengthy and disconcerting article spotlighting yet another aspect of the mess that is California's current sentencing and corrections system.  The piece is headlined "Early jail releases have surged since California's prison realignment," and here are some extended excerpts:

Jesus Ysasaga had been arrested multiple times and ordered by the court to keep away from his ex-girlfriend. Two parole boards sentenced him to nearly a year in jail for stalking, drunkenness and battery.

But the Fresno County jail would not keep him. Four times in the summer of 2012, authorities let Ysasaga go, refusing two times to even book him. The jail had no room. Ysasaga's attorney, Jerry Lowe, said the parade of convicted offenders being turned away from the jail was common. "It became quite a joke," he said.

Across California, more than 13,500 inmates are being released early each month to relieve crowding in local jails — a 34% increase over the last three years. A Times investigation shows a significant shift in who is being let out of jail, how early and where.

The releases spring from an effort begun in 2011 to divert low-level offenders from crowded state prisons to local jails. The move had a cascade effect, forcing local authorities to release their least dangerous inmates to make room for more serious offenders. "It changes criminal justice in California," said Monterey County Chief Deputy Edward Laverone, who oversees the jail. "The 'lock them up and throw away the key' is gone."

State and local officials say that they are making every effort to ensure the releases pose little danger to the public, freeing those believed to be the least risky convicts, usually parole violators and those convicted of misdemeanors. But an analysis of jail data has found that incarceration in some counties has been curtailed or virtually eliminated for a variety of misdemeanors, including parole violations, domestic violence, child abuse, drug use and driving under the influence.

In Los Angeles County, with a quarter of California's jail population, male inmates often are released after serving as little as 10% of their sentences and female prisoners after 5%. Fresno County logs show the jail is releasing criminals convicted of crimes that used to rate prison time: fraud, forgery and trafficking in stolen goods.

Law enforcement officials say that criminals have been emboldened by the erratic punishment. "Every day we get guys who show up in the lobby, stoned out of their minds," said one parole agent who did not want to be identified because he was not authorized to speak about the issue. "I'll have 15 arrested, and 12 to 14 will be released immediately."...

For law enforcement agents, the jailhouse revolving door is frustrating.

Leopoldo Arellano, 39, was in and out of custody at least 18 times from 2012 to 2014 for violating parole, criminal threats and at least four incidents of domestic battery, according to Los Angeles County jail logs. San Diego County let parolee Demetrius Roberts go early 12 times; mostly for removing or tampering with his GPS tracker, which he was required to wear as a convicted sex offender.

In Stockton last year, a furor erupted over the repeated releases of Sidney DeAvila, another convicted sex offender. He had been brought to the San Joaquin County jail 11 times in 2012 and 2013 for disarming his GPS tracker, drug use and other parole violations.

He was freed nearly every time within 24 hours, even when he was brought to the jail by the state's Fugitive Apprehension Team. Days after being let out early in February 2013, DeAvila went to his grandmother's house, raped and killed the 76-year-old woman, then chopped her body into pieces. He was found later that day with the woman's jewelry around his neck....

The problem stems from the huge increase in the number of state prisoners over the last four decades, spurred by increasingly harsh sentencing laws passed during the war on drugs. Felons could serve decades behind bars for repeat convictions of drug use and other nonviolent crimes. From a relatively stable population of less than 25,000 in the 1970s, the number of state prisoners rose to a high of 174,000 in 2007.

Crowding reached dangerous levels, leading federal judges to rule in 2009 that the conditions were unconstitutional. When Gov. Jerry Brown took office in 2011, the state was under orders to cap prison counts at 110,000.

Brown's solution, called "realignment," shifted the responsibility for parole violators and lower-level felons to the counties, putting inmates closer to home and potentially improving their prospects for rehabilitation. Lawmakers tried to ease the load on counties by expanding credits for good behavior and jailhouse work, cutting most sentences in half. Even with that, state officials concede, they knew jails did not have enough room.

The shift flooded county jails, many of which already were freeing convicted offenders under a melange of local court rulings, federal orders and self-imposed caps. "If you've got a prison population and a jail population, if you're going to release anywhere, you might better release at the lower level," said Diane Cummins, Brown's special advisor on realignment and criminal justice policy.

The number of prisoners released from county jail because of crowding has grown from an average of 9,700 a month in 2011 to over 13,500 a month today, according to state jail commission figures. In October, those records show releases surged to over 17,400.

Jailers are struggling to decide whom to let go.... Kern County Sheriff's Lt. Greg Gonzales said the jail he manages hits its maximum capacity two or three times a week. When that happens, inmates must go, 20 to 30 at a time. Parolees and those who have served the most time on their sentences leave first. Those who have committed violent crimes or molested a child stay the full term. The county is experimenting with a risk-assessment system that tries to gauge the likelihood an offender will commit future crimes. Gonzales does not pretend the decisions are foolproof. "Every release is a bad release," he said. What happens after "is a crap shoot."...

Law enforcement authorities and other officials say that releasing prisoners has raised safety issues, although there have been no studies on the effect. At a shelter for battered women in Stanislaus County, where the jail releases more than 500 inmates early each month, caseworkers are convinced that decreasing sentences has emboldened abusers....

Time served varies considerably around the state — a situation that UC Berkeley law professor Barry Krisberg called "justice by geography." That is especially true for parole violators, who used to serve their time in state prison. Now they are locked up in jails and are frequently the first to be released, or not booked at all....

Krisberg said stopping the early releases would require a fundamental change in California's criminal justice system. Just "shifting the location of incarceration" from prisons to jails doesn't change much, he said.

The Little Hoover Commission, an independent state policy agency that released a report last year that was critical of early releases, has recommended that California reform its complex sentencing laws, which have overwhelmed prisons with long-term inmates.

The commission has also recommended reducing bail so more inmates can afford to leave. State records show nearly two-thirds of the space in county jails is occupied by suspects awaiting trial. But even political supporters of such reforms say the issue is an electoral land mine likely to stir campaign accusations of being soft on crime.

Sheriffs have launched their own silent reform by letting out prisoners when there is no room. "We actually have a de facto sentencing commission in our sheriffs," said Carole D'Elia, acting executive director of the Little Hoover Commission. "You have a crazy system of 'Is the jail full today?' "

San Joaquin County Superior Court Judge Richard A. Vlavianos said that allowing jailers to override judges "does nothing but undercut integrity.… It loses public confidence. You lose integrity with the defendants. All the way around, it is a bad thing," he said.

As I have commented before and will say here again, this mess is the obvious by-product of California policy-makers failing to deal proactive with sentencing and corrections problems for decades. Nearly a decade ago, as noted in this long-ago post, Governor Arnold Schwarzenegger proclaimed a state of emergency because extreme prison overcrowding "created a health risk and 'extreme peril' for officers and inmates." He also called the the California legislature into special session in Summer 2006 to address critical prison crowding and recidivism issues. But, thanks to California's dysfunctional politics, nothing much got done. Similarly, smart folks have been urging California to create a sentencing commission to help deal with these issues, but California's dysfunctional politics again brought down a number of potentially sensible proactive reforms.

Now the price of all the avoidance is finally coming due, and the result seems pretty ugly on all fronts. But, sadly, I fear that precious few of the folks who should pay a political price for all this political dysfunction will in the end pay any real political price. Sigh.

August 18, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, August 15, 2014

"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"

The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler.  Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon.  Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.  Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked.  As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.

The use of the pardon power is a necessary element in a fully-functioning system of criminal law.  Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.  This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.  Specifically, we advocate for the creation of an independent commission with a standing, diverse membership.  While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House.  This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool.  An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.  It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position.  This is the time to create a better machine of mercy.

August 15, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, August 12, 2014

"Waking the Furman Giant"

The title of this post is the title of this notable and timely new article by Sam Kamin and Justin F. Marceau available via SSRN. Here is the abstract:

In its 1972 Furman v. Georgia decision, the Supreme Court — concerned that the death penalty was being imposed infrequently and without objectively measurable criteria — held that the penalty violated the Eighth Amendment to the Constitution. In the four decades since Furman there has been considerable Eighth Amendment litigation regarding capital punishment, but almost none of it has focused on the Court’s concern with arbitrariness and infrequency. But this may be about to change. With a growing body of quantitative data regarding the low death sentencing rates in several states, Furman is poised to return to center stage. While previous challenges attacked the form of various state capital statutes, new empirical data is leading condemned inmates to challenge the application of state sentencing statutes.

This article announces the return of Furman — a splintered opinion that nonetheless remains binding precedent 42 years after it was decided — and provides a reading of that case that can guide courts as they consider the latest round of challenges to the application of capital punishment. A careful revisiting of Furman is necessary and overdue because the critical underpinnings of American death penalty jurisprudence — narrowing, eligibility, and individualization — are currently being conflated, or forgotten altogether by both courts and capital litigants. This Article, is a timely guidepost for the inevitable next wave of Furman litigation.

August 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, August 11, 2014

Ninth Circuit panel splits over prisoner Sixth Amendment suit about officials reading legal mail

A Ninth Circuit panel handed down a notable new split opinion concerning an Arizona prisoner's lawsuit challenging the constitutionality of how prison officials were treating his legal mail.  Here is how the majority opinion in Nordstron v. Ryan, No. 12-15738 (9th Cir. Aug. 11, 2014) (available here) gets started:

Plaintiff-Appellant Scott Nordstrom is on death row in the Arizona State Prison. He alleges that when he sought to send a confidential letter — “legal mail” — to his lawyer, a prison guard actually read the letter, instead of merely scanning and inspecting the letter for contraband.  He claims that when he protested to the guard that the letter was a confidential attorney-client communication and should not be read, the guard told him to go pound sand.  Nordstrom’s formal grievances were denied on the stated ground that Department of Corrections staff “is not prohibited from reading the [legal] mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”

Nordstrom then brought a 42 U.S.C. § 1983 lawsuit against Department of Corrections officials, as well as the officer who allegedly read his legal mail, seeking to enjoin them from reading his letters to his lawyer.  He alleges that the defendants’ conduct violates various constitutional rights, including his Sixth Amendment right to counsel.  The district court dismissed the complaint at the pre-answer screening stage for failure to state a claim under any constitutional theory.  See 28 U.S.C. § 1915A.

A prison is no ordinary gated community.  It’s a tough place.  Corrections officials obviously have good reason to be on the lookout for contraband, escape plans, and other mischief that could jeopardize institutional security.  Officials likewise have every right to inspect an inmate’s outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards’ shift changes, and the like.  Prison officials know what to look for.  But inspecting letters and reading them are two different things, as the Supreme Court recognized in Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974).  What prison officials don’t have the right to do is read a confidential letter from an inmate to his lawyer. This is because it is highly likely that a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information — as is his Sixth Amendment right to do — if he knows that the guards are reading his mail.

Reading legal mail — not merely inspecting or scanning it — is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin.  We hold today that his allegations, if true, state a Sixth Amendment violation.  We reverse the dismissal of his complaint.

Here is how the dissent by Judge Bybee in Nordstrom gets started:

Scott D. Nordstrom alleges that, on one occasion during his seventeen-year incarceration, an Arizona Department of Corrections (ADC) officer read a single letter he had written to his attorney. Nordstrom claims that this one event prejudiced his direct appeal, although he cannot explain how.

Based on these allegations, the majority concludes that Nordstrom has adequately pleaded a violation of his Sixth Amendment right to counsel.  I believe the majority is twice wrong. First, the majority has misread Wolff v. McDonnell, 418 U.S. 539 (1974), to hold that prison officials may not read legal letters, even to the limited extent necessary to detect illegal conduct.  See Maj. Op. at 14.  Second, the majority disregards Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), by holding that an inmate need not show substantial prejudice to state a right-to-counsel claim, as long as this court thinks that such prejudice is likely.  See Maj. Op. at 14.

In my view, the Sixth Amendment does not prevent prison officials from reading legal letters with an eye toward discovering illegal conduct.  Furthermore, claims under the Sixth Amendment require proof of actual injury, and Nordstrom does not allege any.  I respectfully dissent.

August 11, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Federal district judge extends Ohio's death penalty moratorium based on execution challenges to January 2015

As reported in this Reuters article, a "federal judge has added five months to a moratorium on executions in Ohio amid scrutiny of a double-drug cocktail the state wants to use." Here is more:

U.S. District Court Judge Gregory Frost, in a one-page ruling issued on Friday, said more time is required “in light of the continuing need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol.”

Ohio Governor John Kasich, who since 2011 has commuted death sentences for four men on death row, had no comment about the judge's decision, a spokesman for his office said.

Frost initially ordered a halt to executions in May, barring state officials from carrying out executions until Aug. 15. That decision came after a botched execution in Oklahoma brought renewed scrutiny to lethal injection, and after a lengthy Ohio execution in January that used an untested combination of drugs. Ohio now plans to use those same two drugs in increased dosages.

The decision on Friday also followed the July 23 execution in Arizona of inmate Joseph Wood, who witnesses said "gasped and snorted" for more than 90 minutes as he was put to death at a state prison complex....

The moratorium issued by Frost on Friday is set to remain in effect until January 15, 2015. Frost's actions come after the state said in April it would increase the dose of the sedative midazolam and painkiller hydromorphone used in its lethal injections.

The last execution in the state took place in January when inmate Dennis McGuire, 53, became the first in the country to be put to death using the midazolam and hydromorphone combination. His execution took 25 minutes and witnesses said McGuire was gasping for breath for at least 15 minutes. McGuire was convicted of the rape and murder of a pregnant woman. After reviewing the execution, state officials said they would increase the dosage of the drugs used in future executions.

Before issuing the extended moratorium, Ohio was set to resume executions on Sept. 18 with the lethal injection of Ronald Phillip, convicted of raping and killing his girlfriend’s 3-year-old daughter in 1993.

August 11, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front. 

In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say.  For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way: 

In a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.

Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....

Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.

In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:

All this is highly recommended reading!

August 11, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack

Sunday, August 10, 2014

"Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'"

The title of this post is the title of this notable new paper available on SSRN authored by Christopher Slobogin. Here is the abstract:

The Supreme Court’s decision in Hall v. Florida holds that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, the Court “scientized” the definition of intellectual disability. This article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis — a requirement that groups that are scientifically alike be treated similarly for culpability purposes — as a means of implementing the scientization process.

August 10, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, August 09, 2014

"May the government try John Hinckley for James Brady’s murder?"

The question in the title of this post is the headline of this astute analysis by Eugene Volokh concerning the legal question that emerged in the wake of James Brady's death being rules a homicide.  Here is how it begins:

The death of James Brady, President Ronald Reagan’s press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan’s life in 1981. Let’s assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?

The answer is no, likely for two different reasons.

August 9, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Wednesday, August 06, 2014

Mizzou complete uneventful execution with single dose of pentobarbital

As reported in this AP article, headlined "Missouri puts to death first inmate since botched execution," the first execution in the US since the messy Arizona execution last month took place every this morning without any problems. Here are the basics and the basic backstory:

A Missouri inmate was put to death Wednesday for raping and killing a college student in 1995, making him the first U.S. prisoner put to death since an Arizona lethal injection went awry last month. The Missouri Department of Corrections said Michael Worthington was executed by lethal injection at the state prison and was pronounced dead at 12:11 a.m. He is the seventh Missouri inmate executed this year.

Worthington had been sentenced to death for the attack on 24-year-old Melinda "Mindy" Griffin during a burglary of her Lake St. Louis condominium.... Worthington, 43, had predicted that the nation's high court and Gov. Jay Nixon would not spare him, insisting in a telephone interview with The Associated Press that he had accepted his fate....

Worthington's attorneys had pressed the Supreme Court to put off his execution, citing the Arizona execution and two others that were botched in Ohio and Oklahoma, as well as the secrecy involving the drugs used during the process in Missouri. Those three executions in recent months have renewed the debate over lethal injection. In Arizona, the inmate gasped more than 600 times and took nearly two hours to die. In April, an Oklahoma inmate died of an apparent heart attack 43 minutes after his execution began. And in January, an Ohio inmate snorted and gasped for 26 minutes before dying. Most lethal injections take effect in a fraction of that time, often within 10 or 15 minutes.

Arizona, Oklahoma and Ohio all use midazolam, a drug more commonly given to help patients relax before surgery. In executions, it is part of a two- or three-drug lethal injection.

Texas and Missouri instead administer a single large dose of pentobarbital — often used to treat convulsions and seizures and to euthanize animals. Missouri changed to pentobarbital late last year and since has carried out executions during which inmates showed no obvious signs of distress. Missouri and Texas have turned to compounding pharmacies to make versions of pentobarbital. But like most states, they refuse to name their drug suppliers, creating a shroud of secrecy that has prompted lawsuits.

In denying Worthington's clemency request, Nixon called Worthington's rape and killing of Griffin "horrific," noting that "there is no question about the brutality of this crime — or doubt of Michael Worthington's guilt." Worthington was sentenced to death in 1998 after pleading guilty to Griffin's death, confessing that in September 1995 he cut open a window screen to break in to the college finance major's condominium in Lake St. Louis, just west of St. Louis. Worthington admitted he choked Griffin into submission and raped her before strangling her when she regained consciousness. He stole her car keys and jewelry, along with credit cards he used to buy drugs. DNA tests later linked Worthington to the slaying.

Worthington, much as he did after his arrest, insisted to the AP on Tuesday from his holding cell near the death chamber that he couldn't remember details of the killing and that he was prone to blackouts due to alcohol and cocaine abuse. He said a life prison sentence would have been more appropriate for him....

On Tuesday, Griffin's 76-year-old parents anticipated witnessing Worthington die. "It's been 19 years, and I feel like there's going to be a finality," Griffin's mother, Carol Angelbeck, told the AP, after flying to Missouri from their Florida home. With the execution, "I won't have to ever deal with the name Michael Worthington again. I'm hoping for my family's sake, my sake, that we can go there (to the prison) and get this over with."

"In this case, there is no question in anyone's mind he did it, so why does it take 18 or 19 years to go through with this?" added Jack Angelbeck, Griffin's father. "This drags on and on. At this point, it's ridiculous, and hopefully it's going to end."

This DPIC page reports that there are more scheduled executions in the US until September, and then there are four executions scheduled in a eight-day period in the middle of the month. Three of those executions are planned in Missouri and Texas, which has had no real problem keeping their machineries of death humming along because of their use of pentobarbital as an execution drug. But Ohio has an execution scheduled for September 18 using a drug cocktail that has led to problems in the past. As a result, I suspect Ohio will once again be the state to watch most closely for interesting lethal injection developments and litigation in the weeks ahead.

August 6, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, August 05, 2014

Is Jodi Arias really going to represent herself at her Arizona death penalty retrial?

The question in the title of this post is prompted by this new report from Arizona headlined "Jodi Arias to represent self in Arizona death penalty sentencing retrial." Here are the basics:

An Arizona judge agreed on Monday to allow convicted murder Jodi Arias to represent herself during a sentencing retrial to determine if she will face the death penalty for killing her ex-boyfriend in 2008, a court spokesman said.

Judge Sherry Stephens granted the request by Arias during a hearing in Maricopa County Superior Court, allowing her to act as her own lawyer when the retrial begins in September, said spokesman Vincent Funari.

Stephens issued the ruling from the bench after cautioning the former California waitress that she felt it would not be in her best interest to take over from her current attorneys, Funari said.

Arias was convicted last year of murdering Travis Alexander in his Phoenix-area home six years ago in what authorities said was a bloody crime scene. He was found slumped in his shower, stabbed multiple times, his throat slashed and shot in the head.

The same jury that convicted Arias in a high-profile trial that was live-streamed on the Internet to tens of thousands of viewers found her eligible for the death penalty, but deadlocked on whether she should actually be put to death.

The sentencing phase retrial will see a new jury impaneled next month to weigh her fate, but will not be broadcast live. If the new jury also deadlocks on capital punishment, a judge will sentence Arias to spend either her natural life in prison, or life with the possibility of parole after 25 years.

Monday's decision came during a rare open session in the case, which has mostly been argued in recent months behind closed doors. Funari said while Arias will represent herself, her current attorneys will act as advisory counsels.

Some prior posts on the Arias case:

August 5, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"The Miller Revolution"

The title of this post is the title of this notable new article by Cara Drinan now available via SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles — even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago.

This article proceeds in three parts.  Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes.  Part II is the heart of the article.  It examines the Miller decision, as well as its immediate predecessor cases, at a granular level.  Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date.  Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others.  In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty.  Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller.  Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.

August 5, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Judge denies Florida sex offender's request to be physically castrated

As reported in this local article, a judge in Florida has felt compelled to reject a sex offender's notable request for a notable alternative punishment.  Here are the details: 

Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.

In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. But Stancil denied the unusual request this past Tuesday, stating his court didn't have jurisdiction to rule over the case.

"In 32 years, I have never had this request before," said Stancil, who spoke about the case for the first time to New Times. "I know there is chemical castration, but I've never had an inmate ask to be physically castrated before. I don't think I have authority as a judge to order such a thing."...

Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels.  MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.

According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life....

The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may -- of their own volition -- ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen -- Williams may be the first in Florida to request it even though he isn't even required to have MPA treatment.

"Sex offenders are wretched," said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. "If he can't handle his penis, then I'm for his decision to take his weapon away."

However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males.  Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.

Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn't a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.

Some related older posts:

August 5, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, August 04, 2014

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

A few recent related posts:

August 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, August 03, 2014

Significant AG Holder comments asserting severe rigid sentences are not needed to induce cooperation

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  I will discuss AG Holder's nuanced comments on this front in some future posts.  

Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics.  Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:

[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case.  This means that the toughest penalties will now be reserved for the most serious criminals.  Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent.  Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases.  But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences.  With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate.  It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion.  That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

August 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, August 02, 2014

"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"

The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN.  Here is the abstract:

Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices.  Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty.  In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.

South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision.  Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce.  Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.

August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, July 31, 2014

Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant

The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here).  Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely.  In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.

Here is how the Musgrave opinion starts and finishes:

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud.  The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment.  On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable.  For the following reasons, we vacate the district court’s sentence and remand for resentencing....

A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2).  In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)).  The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive.  Peppel, 707 F.3d at 636.  A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012).  Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.  See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.

Impermissible considerations permeated the district court’s justification for Musgrave’s sentence.  In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.  “[N]one of these things are [his] sentence.  Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment.  Bistline, 665 F.3d at 765.  On remand, the district court must sentence Musgrave without considering these factors....

In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617.  “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.

Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines.  See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be).  This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes.  Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617.  More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context.  Id.  Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence.  Id.; Camiscione, 591 F.3d at 834.  The district court failed to do so here.

Musgrave must be resentenced.  The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.”  Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.

I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.

July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Attorney General Eric Holder to Oppose Data-Driven Sentencing"

The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice.  Here are highlights from this article (with more to follow in coming posts):

Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations.  Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.

Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again.  Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.

Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities.  “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.

Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money.  But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.

Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”

Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders.  Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law.  And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.

But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work.  “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement.  For example, prior convictions and the age of first arrest are among the most power­ful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.

And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue.  Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown.  “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.

Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line.  Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....

Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing.  “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.

July 31, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, July 30, 2014

Indiana reforms highlight how sentencing laws impact cops as well as courts

This interesting local article from Indiana, headlined "Meth Suppression Unit Encounters Positive, Negative Aspects to Massive Sentencing Overhaul," spotlights some of the ways sentencing reform impacts law enforcement operations and priorities. Here are excerpts:

Indiana's criminal sentencing reform took effect nearly a month ago and police detectives and prosecutors are still trying to take it all in. The overhaul brought sweeping changes for law enforcement officers, especially the Evansville Police Department's Meth Suppression Unit.

During the 2013 session, the General Assembly passed House Enrolled Act 1006 which re-wrote the felony portion of the state's criminal code. The new law expands upon the state's four levels of felonies (Class A-D) and creates six levels of felonies (Level 1-6). The reform was intended to ease prison crowding and give judges more discretion to let low-level offenders serve their time in community correctional programs.

For example, what was once a Class A felony became a Level 1 or Level 2 felony, depending on severity. As part of the reform, offenders would have to serve 75% of their sentences instead of the current 50%. While the reform strengthens the sentences for sex crimes and violent crimes, it lessens the sentences for drug crimes. While it has some positive and negative aspects, the jury is still out on the reform, said Evansville Police Detective Patrick McDonald.

"For me, I've been on the street now for 10 years," Det. McDonald said. "There hasn't been a major overhaul of the criminal code like this. Under the old system, manufacturing [meth] was manufacturing [meth]. It was never able to be enhanced by weight so now we have to look at how we process meth labs and try to get a weight out of that."...

The criminal sentencing overhaul eliminated some enhancement charges the Meth Suppression Unit frequently used, McDonald said. McDonald detailed one such example in which a man previously convicted of meth was allegedly caught trying to buy pseudoephedrine, the key ingredient in meth production. Because that man had already been convicted of a meth-related offense, prosecutors added the enhancement charge which bumped up his sentence by eight years.

Some other enhancement charges have been clarified and more clearly defined, McDonald said. He cited the enhancement charge of dealing drugs within 1000 feet of a park or school. Under the new sentencing guidelines, detectives no longer have to prove children were present; the enhancement charge is applicable when it can be 'reasonably expected' that children are present.

The reform also brought drastic changes to what level felony shall apply to how much narcotics detectives discovered. "What used to be dealing over three grams [the General Assembly] raised that up to be 28 grams," McDonald said. "Three grams is a fairly significant amount, about $300 to $350 worth of meth or cocaine. What we historically considered a 'dealer weight' has been pushed down to minimal prison time."

July 30, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack