Monday, August 25, 2014

"Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America"

Mass_incarceration_finalThanks to this new posting at The Crime Report, I see the exciting news that Jonathan Simon's new book about mass incarceration and California's dysfunctional role therein has been released by The New Press.  The book's title makes up the title of this post, and here is how the publisher describes the book on its website:

For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading — relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order.  In short, mass incarceration has proven to be a fiscal and penological disaster.

A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.”  Berkeley law professor Jonathan Simon — an internationally renowned critic of mass incarceration and the war on crime — argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence.  Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.

Exposing the priority of politics over rational penal policy — and debunking the premise that these policies are necessary for public safety — this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.

August 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

What's the likely Ninth Circuit timeline for deciding the fate of California's death penalty in Jones v. Chappell?

As first noted in this post a few days ago, California Attorney General Kamala Harris has officially noticed an appeal to the Ninth Circuit in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), the remarkable case in which U.S. District Judge Carney declared all of California's death penalty system unconstitutional.  Because the stakes are so high in California and for modern death penalty jurisprudence generally, I expect this Ninth Circuit capital appeal will get considerable attention in the weeks and months ahead and that lots of different death penalty advocates (both pro and con) will be filing amicus briefs with competing claims about the constitutionality of California's death penalty system.

As the question in the title of post highlights, though I am sure the Jones v. Chappell appeal will get garner lots of attention, I am not sure how quickly (or slowly) the Ninth Circuit will hear and decide this case.  As death penalty fans know, federal capital habeas appeals have a (well-earned) reputation for proceeding either (1) very slowly, in part because a death row defendant raises so many case-specific claims concerning errors in a state trial and sentencing, or (2) very quickly, in part because there is a looming serious state execution date and the state highlights that all reasonable claims of error have been considered and rejected before.  In Jones v. Chappell, however, at issue on appeal is just one basic system-wide constitutional concern which is being considered in a case in which no serious execution date is looming.  Consequently, there is little reason to expect this appeal to move especially slowly or especially quickly.

Notably, a bit of irony attends the question in the title of this post because the constitutional issue in Jones v. Chappell centers on lengthy delays in appellate review in California and the apparent arbitrariness of which cases get through reviews more quickly or slowly.  Arguably, the longer the Ninth Circuit appellate process takes in Jones v. Chappell, the stronger the capital defendant's claims become.  That  bit of irony aside, I am eager to hear from any infomed Ninth Circuit capital habeas practitioners or observers concerning what kind of timelines are likely in play now in Jones v. Chappell.  Is this case likely to be fully briefed before the end of this year?   Can/should we reasaonally expect oral argument to take place in the early part of 2015 and a ruling not long thereafter?

I ask these questions not only because I am genuinely wondering what kind of pacing we all should expect in this matter, but also because this case necessarily should impact any political plans that California death penalty supporters and opponents may have for the big looming 2016 election.  Supporters of a more efficient and effective California death penalty system are already on record expressing interest in a voter initiative to reform the state's capital appellate process, and steadfast opponents of the death penalty also seem likely to eye a 2016 capital repeal initiative.  Not just how, but also exactly when, the Ninth Circuit rules in Jones v. Chappell could greatly impact initiative planning and advocacy.

Recent related posts:

August 25, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, August 22, 2014

California Attorney General seeking appeal in Jones v. Chappell capital case

As reported in this Los Angeles Times piece, headlined "California AG Kamala Harris to appeal ruling against death penalty," the Ninth Circuit will now be called upon to consider the remarkable decision last month by U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts last month  here and here), and now I suspect the case is going to generate lots of thoughtful amicus briefs on both sides.

For a host of reasons, I am not very surprised and I am very pleased that California AG Harris has decided to appeals the important and consequential ruling in Jones v. Chappell.  The facts stressed and conclusions reached in that decision merit greater attention and scrutiny, and proceedings in the Ninth Circuit will help ensure the cases and its issues get a wider airing.  Indeed, I would not be surprised if the Ninth Circuit ends up having both a regular panel and an en banc panel consider the issues in Jones v. Chappell all as a prelude to an (inevitable?) cert petition by the losing party on appeal.  In other words, stay tuned death penalty followers.

Recent related posts:

August 22, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"It’s Time to Overhaul Clemency"

The title of this post is the headline of this recent New York Times editorial.  Though I wish the headline was something more like "Prez Obama sucks for failing to overhaul clemency during his six years on the job," I am glad to see the Grey Lady again spotlighting the Obama Administration's conspicuous failings to date in this arena.  Here are excerpts: 

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates....

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

A few of many recent and older posts concerning federal clemency practices:

August 22, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 21, 2014

Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect

Via an e-mail from the National Association of Criminal Defense Lawyer, I just learned of a notable new opinion from the Kentucky Supreme Court.  Here is an excerpt from the NACDL's account of the ruling (as well as a link to the ruling):

In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter....

A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.

A link to NACDL's Formal Opinion 12-02 is available here.

A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here

August 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Let's reserve costly prison beds for dangerous offenders"

The title of this post is the headline of this new commentary appearing in Utah's Deseret News and authored by Grover Norquist and Derek Monson. Here are excerpts:

As the economy continues to sputter, Utah should continue to heed the practical wisdom of the frugal family and tighten its belt. There can be no sacred cows in the budget.

One area of spending that has traditionally been “off limits” for cuts — the prison system — can no longer escape examination. Utah’s growing prison population, which currently costs state taxpayers more than $250 million annually, is projected to add an additional 2,700 prison beds in the next two decades. If that increase would make us safer, it would be worth it.

But many of these additional beds are not for dangerous and serious offenders. In fact, Utah is sending more nonviolent offenders to prison than it did a decade ago and keeping them behind bars for longer periods of time. This includes a steep increase in female offenders as well as probationers sent to prison for “technical violations” of the terms of their supervision rather than for committing a new crime. In other words, many of those we choose to send to prison (or back to prison) are low-risk, nonviolent offenders.

This is costly and counterproductive. Research shows that low-level offenders often leave prison more dangerous than when they entered. As conservatives, we pride ourselves on being tough on crime, but we also must be tough on criminal justice spending. The question underlying every tax dollar spent on corrections should be: Is this making the public safer?...

Across the nation, other states have faced the same dramatic increases in prison costs, which are now the second-fastest-growing item in state budgets behind only Medicaid. Several of these states have found innovative ways to cut corrections spending while maintaining public safety. Texas, for instance, scrapped plans to build more prisons and put much of the savings into drug courts and treatment, with impressive results: Crime rates are at their lowest since 1968, and the falling inmate population enabled Texas to close three prisons, avoiding $3 billion in prison costs.

States like Georgia, Pennsylvania, South Carolina, Mississippi and South Dakota have adopted similar reforms that reduce prison populations and corrections costs while improving public safety, allowing them to reinvest some of the savings into programs proven to cut crime and reduce recidivism....

As signatories to the national Right on Crime movement, we are conservative leaders working to apply our conservative principles to the criminal justice system. As such, we are pleased that Utah is joining other states in demanding more cost-effective approaches to public safety, and we wholeheartedly support the efforts of Utah’s leadership to create a more effective criminal justice system.

August 21, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, August 20, 2014

Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft

Images (2)Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:

The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.  For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.

The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term.  Here is an excerpt from the heart of the opinion's analysis:

In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino.  There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons.  Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....

The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos.  We acknowledge that all fines serve the twin purposes of punishment and deterrence.  At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry.  The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....

[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses.  It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties.  However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them.  We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.

August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Detailing the significant increase in California lifers getting parole

This local article, headlined "Life with parole no longer means life term: Legal ruling causes steady rise in parole for California's lifers," highlights that parole has recently become a realistic possibility again for lifers in California. Here are the details:

Not so long ago, the conventional wisdom in legal circles was that any violent criminal sentenced to life with the possibility of parole in California wasn’t likely to ever walk out of prison. Whether that inmate had served the minimum on a term of 15 years to life or 25 years to life seemed inconsequential for many prisoners in the 1990s and early 2000s. In California, life meant life.

But that’s not the case anymore. In 2009, 221 lifer inmates were released from prison on parole, more than twice the number from the year before, according to the Governor’s Office. The numbers have steadily increased since then, reaching a high of 596 lifer inmates released on parole last year.

More than 2,200 inmates who had been serving life sentences in California have been paroled over the past five years, which is more than three times the number of lifers paroled in each of the previous 19 years combined.

Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.

Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown....

The spike in paroles came during Arnold Schwarzenegger’s term as governor, when the state’s high court established the standard by which a prisoner could be determined suitable for parole. Schwarzenegger, who was governor from 2003 to 2011, reversed more than 1,100 lifer parole grants during his time in office. One of them involved Sandra Davis Lawrence, who killed her lover’s wife in 1971. Her case went to trial in 1983. She was convicted of first-degree murder and sentenced to life in prison.

The Board of Parole Hearings determined in 2005 that Lawrence was suitable for parole based on several factors, including her efforts to rehabilitate herself in prison, her acceptance of responsibility for her crime and her close ties to her family. But Schwarzenegger found that Lawrence was not a good candidate for release based on “the gravity of the commitment offense,” according to court documents.

A three-judge panel of the state Supreme Court said that’s not good enough, explaining that parole could not be denied simply because the inmate’s offense was “heinous” or “cruel.” The key factor is whether that person remains a danger at the time parole is considered. “There has to be something more than just your crime was particularly atrocious,” said Jennifer Shaffer, executive officer of the Board of Parole Hearings. Denial can’t be based on “something you can’t change,” she said.

When the board denies parole for an inmate, that decision can be appealed, which results in a court-ordered hearing. In 2009, the first full year after the ruling, there were 263 court-ordered hearings spurred by appeals. “That is basically the court saying, ‘You got it wrong,’” she said. Last year, there were only 13 court-ordered hearings, which Shaffer said indicated the board had learned over time how to do a better job of applying the new standard. “The board, as a whole, learned with a lot of guidance from the court,” she said.

The Board of Parole Hearings issued 670 parole grants in 2012, and 590 in 2013, but some of those offenders may still be behind bars. Depending on factors specific to each case, it could take five months to several years for each prisoner to actually be released. State law bars the board from taking prison overcrowding into account when making its decisions. However, Shaffer said, there may be a perception that the issues are related because of the state’s efforts to comply with the federal court order.

August 20, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"15 years without an execution: the death penalty in Pennsylvania"

The title of this post is the headline of this local article highlighting Pennsylvania's remarkably long de facto moratorium on executions despite sending a significant number of murderers to death row." Here are the details:

Pennsylvania's Governor Tom Corbett has issued his thirty-sixth execution warrant. Michael Parrish, from Monroe County, is scheduled for execution in October after being convicted of killing his girlfriend and baby.

But according to experts, if the current trend continues, it could be decades before that ever happens. "Anyone who fights the death penalty today can go on for 15 to 25 years on death row," said Northampton County District Attorney John Morganelli.

Pennsylvania ranks fourth in the United States for the most people on death row. Close to 200 people currently have a death sentence, according to the Pennsylvania Department of Corrections. But the state has executed just three people in the last 35 years.

Morganelli said lengthy appeals are a factor, but not the sole, or biggest influence. "We have federal judges who constantly block these executions…It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty," Morganelli said. Other experts said overturned death sentences are also a reason.

Notably, Pennsylvania's modern experience with the death penalty seems somewhat comparable to what has transpired in California; the facts and factors in Pennsylvania thus seem similar to those stressed in Jones v. Chappell, last month's controversial federal district court ruling that California's death penalty is unconstitutional under Eighth Amendment (basics here). I would think more than a few savvy defense lawyers representing death row defendants in Pennsylvania are likely adding Jones claims to their appeals.

Some related posts:

August 20, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, August 19, 2014

Senator Whitehouse defends risk-assessment tools for some sentencing determinations

The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making.  Here is the full text of the published letter:  

In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism.  But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.

The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.

States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend.  That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves. 

Recent related posts:

August 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

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