Thursday, June 22, 2017

Today's SCOTUS CJ scorecard: government wins in two procedural cases, defendant wins in one substantive case

The Supreme Court this morning handed down opinions in three cases, all three of which involve intricate criminal law and procedure issues. I am going to copy and tweak here the summary of all the action from How Appealing for ease of exposition: 

1. Justice Elena Kagan delivered the opinion of the Court in Maslenjak v. United States, No. 16-309. Justice Neil M. Gorsuch issued an opinion, in which Justice Clarence Thomas joined, concurring in part and concurring in the judgment. And Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. 

2. Justice Stephen G. Breyer delivered the opinion of the Court in Turner v. United States, No. 15-1503. Justice Kagan issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. 

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Weaver v. Massachusetts, No. 16-240.  Justice Thomas issued a concurring opinion, in which Justice Gorsuch joined.  Justice Alito issued an opinion concurring in the judgment, in which Justice Gorsuch also joined.  And Justice Breyer issued a dissenting opinion, in which Justice Kagan joined. 

As the title of this post indicates, and as the pattern of votes suggests, the defendant prevailed in first of these listed cases, Maslenjak, which concerned the substantive reach of a federal criminal statute.  The government prevailed in the other two cases, one of which concerned the application of Brady (Turner) and the other of which concerned what types of errors can be found harmless in Strickland ineffective assistance analysis (Weaver).

For a variety of reasons, the procedural rulings on behalf of the government in Turner and Weaver seem like a much bigger deal than the Maslenjak ruling, perhaps especially because the government had won below in Turner and Weaver and so it could have been reasonably assumed that the Supreme Court took up the cases in order to reverse the outcome.  Also, of course, issues related to the application of Brady and Strickland impact so many cases, especially on collateral appeal.

Over at Crime & Consequences, Kent Scheidegger has this helpful summary post on all these cases simply and appropriately titled "Materiality."

June 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 21, 2017

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline

Long-time readers may recall a period about five year back when I was regularly blogging about notable federal district and circuit opinions struggling in various ways to figure out whether and how federal courts could impose restitution awards/punishments on federal offenders convicted only of downloading illegal images.  (As blogged here, a New York Times Magazine cover story in January 2013 nicely covered the legal and social issues involved in what was ultimately a sentencing question.)   Because the issue produced various splits in the lower courts, the Supreme Court took up and resolved the question in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  

But while Paroline resolved some measure of legal uncertainty surrounding this child-porn restitution issue, it did so in a way that largely punted a host of factual challenges back to district courts at the time of sentencing.  This new local article in my local paper, headlined "Judge doesn’t want to guess on child-porn restitution," reminds me that Paroline did not really end the messy questions surrounding child-porn restitution determinations, it just made the litigation here much lower profile.  Here are excerpts from the local article:

U.S. District Judge Michael H. Watson doesn’t like “wild-ass guesses,” according to federal courts Reporter Earl Rinehart.

Watson presided over a restitution hearing last week during which a civil attorney representing a child pornography victim called “Andy” had petitioned Watson for $58,415 in damages.  The attorney’s client wasn’t the underage teen the defendant had photographed nude and was convicted for, but Andy’s picture was on the defendant’s computer.

In 2014, the U.S. Supreme Court ruled that child-pornography defendants could be liable to pay victims an amount proximate to the harm caused by having and/or distributing the image. Watson has said Congress needs to set standards to help judges calculate how much restitution to approve.  A bill that would set those minimum amounts was passed by the U.S. Senate but has languished in the House Judiciary Committee since February 2015.

Although he commended Assistant U.S. Attorney Heather Hill for her “valiant effort” in arguing for restitution, he agreed with Assistant Federal Public Defender Rasheeda Khan, who argued there was no evidence the defendant had shared Andy’s image and there was no way to accurately figure how much he owed now and for the victim’s future therapy costs. Another 158 defendants have either agreed to pay restitution to Andy or were ordered to do so.

Watson said the petition was based on a 2014 report that’s “not subject to cross examination” and “would not be admissible in a civil litigation.”

“There is no evidence Andy is a victim of this offense,” the judge said. He called again on Congress “to give us some direction.”

“It’s essentially a wild-ass guess for me to figure the appropriate restitution,” Watson said before denying any to Andy.

A few (of many) prior posts on Paroline and child porn restitution issues from years ago:

June 20, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Monday, June 19, 2017

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Thursday, June 15, 2017

"Support Grows for Civil Commitment of Opioid Users"

The title of this post is the headline of this notable new Stateline article.  Here is how it gets started:

Amid an opioid addiction epidemic that is killing more than 90 Americans every day, there is a growing movement to make it easier for relatives and health care providers to quickly secure court orders to forcibly confine and treat people who are addicted to drugs.  Most states have civil commitment laws primarily designed to protect people with mental illness from themselves and others.  Many of the laws include drug addiction and alcoholism as a justification for temporary confinement, or at least don’t preclude it.

But in practice, most commitment laws have been ineffective when it comes to people who use heroin and other opioids, in part because some judges have been leery of taking away a person’s civil liberties for what society has long perceived as a moral failing.  Unlike people with severe mental illness, people who are addicted to drugs typically retain the mental capacity to take care of their basic needs, even though the chronic disease alters the brain, making the person eventually value drug use above all else.

New Hampshire, Pennsylvania and Washington are considering new civil commitment laws specifically designed for opioid use.  Kentucky has gone back to the drawing board after failing to enact a commitment law for opioid addiction last year.

And in Massachusetts, the one state where civil commitment has been used extensively for opioid addiction, Republican Gov. Charlie Baker wants to make it even more common....

Historically, confining people against their will has been fraught with moral and legal ambiguities and haunted by reports of abuse.  But the parents of young adults who use opioids are pushing state lawmakers and governors to make intervention easier, even as physicians and state health officials search for ways to break the cycle of repeated overdoses.

Addiction professionals generally agree that civil commitment can save lives. But they argue that without effective treatment, confining people with an addiction may do more harm than good.  “People who use substances and have addictions still have civil rights,” said Dr. Alex Walley, director of an addiction medicine fellowship at Boston Medical Center.  “The real question is whether effective treatment is available, which in the case of opioids, is going to be medication. And it’s not OK to limit it to just one medicine,” Walley said.  Another concern is whether the state can ensure that continued treatment will be available once the person is released, he said.

June 15, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, June 14, 2017

Fair Punishment Project starts "In Justice Today" to look closely at work of prosecutors

Via email I was alerted to the creation of "In Justice Today," a new publication of the Fair Punishment Project at Harvard Law School.  This introductory post explains the vision and goals of this notable new resource:

Ask yourself who are the most powerful people in the community in which you live and many might think of the mayor, the city council president, the owner of the local sports team, maybe the superintendent of schools.

But in many ways all of those people are trumped by the local elected prosecutor. The mayor and superintendent cannot send cops into your home and march you downtown in handcuffs, the prosecutor can do that.  They have the power to put people in jail, to choose not to bring charges, to seek the maximum sentence for one person while letting someone else off with a warning while determining which type of crimes will be prioritized while others will be ignored.

That’s an awesome and terrifying power, and how prosecutors wield that power can impact numerous lives and determine what type of community we all live in.  But in most communities, the prosecutor is an unknown figure.  Until recently most prosecutors enjoyed something close to a lifetime appointment. Rarely getting much attention or scrutiny....

Our goal is simple, we want to hold actors in the criminal justice system accountable for their actions.  Whether it’s a prosecutor putting a rape victim in jail when she doesn’t want to testify, a judge sentencing a young kid to 63 years in jail for driving with a suspended license, a DA charging a 12-year-old with a crime and putting them in the adult prison system, or continuing the prop up a death penalty system that becomes more ridiculous and cruel every day this blog will be looking for injustice and pointing the finger at the person who is most responsible.

June 14, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, June 12, 2017

Notable report of Missouri parole board playing a version of "turkey bingo" during hearings with inmates

I just noticed an interesting report from the St. Louis Post-Dispatch about an intriguing controversy swirling around Missouri's parole board.  Here are links to two lengthy stories about the controversies and their first few paragraphs:

"Missouri parole board played word games during hearings with inmates"

The Missouri Board of Probation and Parole allegedly toyed with prisoners during hearings by trying to get them to say a chosen word or song title of the day, such as “platypus” and “Hound Dog.”

Don Ruzicka, a member of the seven-member board, along with an unnamed government employee were accused of keeping score during the hearings, according to a Department of Corrections inspector general report completed on Nov. 1, 2016. Each time one of them used a predetermined keyword while interviewing an offender they earned a point. Two points were granted if the offender repeated the word. Occasionally, the duo spiced the game up by wearing matching clothing, like the time they dressed in black shirts, ties, pants and shoes.

The Roderick and Solange MacArthur Justice Center at St. Louis recently obtained the state report and released it Thursday after a news conference, asserting that public servants “played games with people’s lives and liberty.”

"Officials insist Missouri parole board takes job seriously despite games played during hearings"

The day after a human rights law firm called on Republican Gov. Eric Greitens to remove former state Rep. Don Ruzicka from the Missouri Board of Probation and Parole for toying with inmates during hearings, two top prison officials stood by the panel on Friday.

A previously undisclosed state investigation found that Ruzicka and an unidentified Department of Corrections employee entertained themselves at some parole hearings by trying to get inmates to say words and song titles such as “platypus” and “All My Rowdy Friends Are Coming Over Tonight.” They even kept score.

“We have very credible members who take their job seriously,” insisted Parole Board Chairman Kenneth C. Jones, who is also a former Republican state representative as well as a former sheriff. “There is no joking around. It’s a very serious job.”

June 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, June 11, 2017

"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"

The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed.  Here is description via the book's Amazon page:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book.  The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost.  And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion.  The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention.  This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.

June 11, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Saturday, June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (27)

Friday, June 09, 2017

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 08, 2017

"Neither Justice Nor Treatment: Drug Courts in the United States"

PhrThe title of this post is the title of this notable new report issued by the group Physicians for Human Rights. Here is an excerpts from the report's executive summary:

U.S. drug courts [are] specialized courts within the criminal justice system set up to provide alternative sentencing options — treatment instead of jail or prison time — for people charged with criminal behavior linked to drug possession, sale, or addiction.  The first courts were opened in 1989 to ease dockets and jails that were overflowing as a result of strict federal and state laws passed in the 1980s in an attempt to reduce drug supply and consumption.

Almost three decades later, there are more than 3,100 drug courts operating in the United States.  But while the courts’ proponents say they reduce recidivism for people with substance use disorders, critics say the system abuses due process, often mandates treatment for people who don’t actually need it — people without drug dependence — and fails to provide quality care to many who do.

Physicians for Human Rights (PHR) assessed the availability and quality of substance use disorder treatment through drug courts in three states — Florida, New Hampshire, and New York, chosen for the diversity of their drug court and health system approaches — and found major obstacles to quality evidence-based treatment for drug court participants in all three states.  Overall, PHR found that drug courts largely failed at providing treatment to those who truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care.  In many cases, court officials with no medical background mandated inappropriate treatment not rooted in the evidence base, or mandated treatment for people who didn’t need it.  In all cases, the functioning and mandate of the drug courts posed significant human rights concerns.

At the most basic level, PHR found that access to quality treatment was hampered by the inherent tension between a punitive criminal justice logic and therapeutic concern for drug court participants as patients.  In fact, despite the stated intention of drug courts to treat people who use drugs as ill rather Executive Summary than deviant, drug court participants were often punished for relapsing, missing therapy appointments, or otherwise failing to follow court rules.

One key concern motivating this research was whether drug courts were able to appropriately diagnose and facilitate treatment for people with substance use disorders who are in conflict with the law.  We found that, in many cases, they were not.  Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was directly at odds with medical knowledge and recommendations.  The most egregious example of this was the refusal, delay, or curbing of medication-assisted treatment (MAT) (also known as substitution or replacement therapy) to people with opioid use disorders, despite evidence that treatment for such disorders in many cases requires long-term — sometimes permanent — medication.  Some drug courts also prevented participants from accessing or staying on medically prescribed treatment for anxiety, Attention Deficit Hyperactivity Disorder, and other chronic health problems.

Human rights concerns are thus particularly relevant for drug courts, as these courts blur the line between voluntary and coerced treatment, and compel participants to waive the right to confidentiality.  Furthermore, most drug courts operate with regulations that subject medical expertise and advice regarding treatment to prosecutorial oversight and potential veto, raising questions about a person’s ability to access impartial evidencebased care.  Even where courts did not actively violate human rights protections of their participants, the regulatory set-up constantly threatened such violations.

June 8, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, June 07, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, June 06, 2017

A timely call for "Reorganizing the Federal Clemency Process"

Paul Larkin, who has written a number of recent notable article on clemency noted here and here, now has this new "Legal Memorandum" at The Heritage Foundation titled ""Reorganizing the Federal Clemency Process."  Here its abstract and "Key Points":

The President relies on the Department of Justice to filter out ineligible applicants and recommend from the remainder which ones should receive clemency, but the department suffers from an actual or apparent conflict of interest.  One proposed remedy would be for Congress to create an independent advisory board like the U.S. Sentencing Commission to review every clemency application and offer the President its recommendations.  A better alternative would be for the President to move the Office of the Pardon Attorney into the Executive Office of the President and use the Vice President as his principal clemency adviser.  The Vice President can offer the President several benefits in the clemency decision- making process that no one else in the government possesses.

Key Points:

Prior related posts:

June 6, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, June 05, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

June 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deputy AG Rosenstein suggests rising crime justifies prosecutorial shift from Holder Memo to Sessions Memo

I just saw this AP article from late last week reporting on an interesting interview with the second in charge at the US Department of Justice.  Here are the details:

The Justice Department’s new policy urging harsher punishments for most criminals is meant to target the worst gang members and drug traffickers, Deputy Attorney General Rod Rosenstein said Friday in an effort to mollify critics who fear a revival of drug war policies. “We’re not about filling prisons,” Rosenstein told The Associated Press in his first interview since becoming the Justice Department’s No. 2 official. “The mission is to reduce violent crime and drug abuse, and this helps us do that.”

Rosenstein emphasized the department’s plan to fight violent crime that includes prosecutors’ ability to decide whether to level charges that carry mandatory minimum sentences — a carrots-and-sticks approach for gaining cooperation. He acknowledged that federal prosecutors will sometimes charge lower-level criminals to take down entire gangs but “that’s the exception not the rule.”...

Attorney General Jeff Sessions’ directive last month urges federal prosecutors to seek the steepest penalties for most crime suspects, a reversal of Obama-era policies that aimed to reduce the federal prison population and show more leniency to lower-level drug offenders. Sessions’ Democratic predecessor, Eric Holder, told prosecutors they could, in some cases, leave drug quantities out of documents to avoid charging suspects with crimes that trigger years-long mandatory minimum punishments.

Some prosecutors have said they felt constrained by the Holder directive. Under that old rule, they worried about a loss of plea-bargaining leverage — and a key inducement for cooperation — without the ability to more freely pursue charges that carry mandatory minimum sentences.

Advocates for changes to the criminal justice system assailed the reversal as a return to drug-war era policies that helped ravage minority communities and put even nonviolent drug offenders in prison for long terms. Among the sharpest critics was Holder, who called it an “ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

Rosenstein said he dutifully implemented Holder’s policy when it was issued in 2013 but believes recent spikes in violence in some cities necessitate a new approach. Supporters of Holder’s policy “felt like there were too many people in prison and crime rates were falling, and they were hopeful that they could reduce enforcement and keep crime rates low,” he said. “We’re in a different position now.”

Officials will be continually tracking crime statistics in cities that have seen recent spikes in violence. But any change won’t be immediate, Rosenstein said. Sessions’ directive gives prosecutors leeway to veer from the policy and levy less-serious charges when warranted. And federal prosecutors rarely take cases against “minor offenders,” focusing their attention instead on larger criminal organizations, Rosenstein said. “We think it’s important in this circumstance in 2017 to restore to our federal prosecutors the authority to use the penalties Congress has given them in cases they think it’s important,” Rosenstein said. “We’re not micromanaging from Washington.”

I find it quite interesting that DAG Rosenstein here repeated a line used by AG Sessions last month when discussing his new charging/sentencing memo that the new policy is "not micromanaging from Washington." This leads me to think that at least some local US Attorneys expressed concern about being "micromanaged" by the Holder Memos, and it leads me to wonder if these US Attorneys will really feel more free from micromanaging under the Sessions Memo.

Prior recent related posts: 

June 5, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Supreme Court unanimously limits reach of federal drug-offense forfeiture statute

The US Supreme Court this morning handed down a unanimous opinion in Honeycutt v. United States, No. 16-142 (S. Ct. June 5, 2017) (available here), a case concerning the reach of the federal criminal forfeiture statute. The opinion for the Court was authored by Justice Sotomayor, and it starts and ends this way:

A federal statute — 21 U.S.C. § 853 — mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes.  This case concerns how § 853 operates when two or more defendants act as part of a conspiracy. Specifically, the issue is whether, under § 853, a defendant may be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The Court holds that such liability is inconsistent with the statute’s text and structure....

Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.  In this case, the Government has conceded that Terry Honeycutt had no ownership interest in his brother’s store and did not personally benefit from the Polar Pure sales.  App. to Pet. for Cert. 60a.  The District Court agreed. Id., at 40a.  Because Honeycutt never obtained tainted property as a result of the crime, § 853 does not require any forfeiture.

The opinion's first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute, which in turns further reinforces my long-standing view that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.

June 5, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Supreme Court grants cert on whether Fourth Amendment limits collections of historical cell phone records

In this order list this morning, the US Supreme Court granted certiorari in Carpenter v. United States which asks, in the words of the cert petition, "whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment."

Though obviously not a sentencing case, I suspect lots of criminal justice fan (and others) will be keeping an eye on Carpenter in the months ahead.  In addition, this case would seem to present the first big opportunity for the newest Justice, Justice Neil Gorsuch, to reveal his take on the Fourth Amendment in particular and privacy issues more generally.

June 5, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, June 03, 2017

"Is the death penalty dying in Dallas County?"

The question in the title of this post is the headline of this local article which documents a trend that leads me to think that the death penalty is never again likely to be a significant part of American criminal justice systems (if it every really was in the recent past).  Here are excerpts:

The crimes were heinous but Dallas County jurors couldn't condemn the convicted killers. A college student killed three people at a drug house in a premeditated robbery. A former special education teacher and U.S. Army veteran killed his girlfriend, her teenage daughter, his estranged wife, her adult daughter and severely wounded four children in a two-city rampage.

But neither killer received the death penalty, a punishment reserved for the "worst of the worst." Statewide, juries have declined death sentences in nearly half of the cases presented to them in the past two years.

So, what does it take to win a death penalty sentence? "You gotta be perfect probably these days," said Edwin King, a special prosecutor in one of the Dallas County cases.

Jurors couldn't agree to the death sentence in the two recent capital murder trials. They were the first Dallas County cases in which the state sought the death penalty since 2014.

The decision to seek the death penalty is based on the the severity of the crime, criminal background and what the victim's family wants, said Dallas County District Attorney Faith Johnson. "Our office only seeks the death penalty in the most heinous and serious of crimes," Johnson said....

"Even in Texas, the death penalty is dying," said Jason Redick of the Texas Coalition Against the Death Penalty. In the 15 death penalty cases tried in Texas since 2015, jurors have sent only eight men to death row. Death sentences peaked in the 1990s. Between 2007 and 2013, Dallas County led the state in defendants sent to death row. During that time, the county sentenced 12 people to death. Executions in Texas are also declining because of legal reforms that give prisoners more chances to have their sentences reviewed.

Jurors are only selected after they agree that they can give the ultimate punishment. Even so, they appear to be split on the issue in recent years. "We know these aren't folks who are anti-death penalty folks," Redick said. "At one point, they said they could hand out a death sentence."

June 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, June 02, 2017

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tracking state work on criminal justice and drug policy through Stateline

The Pew Charitable Trusts Stateline site does a great job tracking state-level developments on an array of criminal justice and drug policy issues. Here are some examples from recent weeks that caught my eye:

 

June 2, 2017 in Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Thursday, June 01, 2017

Is the Ninth Circuit right in holding a federal sentencing judge cannot reject a jury special verdict finding on drug quantity?

The question in the title of this post is one that has been simmering in the Ninth Circuit and resulted in today's release of an amended opinion and a dissent from the denial of en banc review in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. June 1, 2017) (available here). Here is the heart of the amended opinion:    

[T]he record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances....

In our case, the government proposed the verdict form that set both a lower and an upper boundary for the amount of drugs involved.  Having proposed the language, the government now urges us to read the verdict form as “acquitt[ing] [Pimentel-Lopez] on the 500-gram amount,” with which he was initially charged.  But none of the choices offered by the verdict form were capable of capturing that view.  That may have been a blunder, but the jury answered the questions it was asked and so the die is cast: The government cannot disavow the finding that the jury makes as a result....

Nothing prevented the government from proffering [a different special verdict] form.  But, having proposed a form that required the jury to find that the drug quantity was less than 50 grams, the government locked itself out of the possibility of proving more than 50 grams at sentencing. It can easily avoid this pitfall in future cases....

Because the district court may not contradict an affirmative finding by the jury, we must vacate the sentence and remand with instructions that defendant be resentenced on the premise that his crimes involved less than 50 grams of drugs.

The dissent from the denial of en banc authored by Judge Graber (and joined by five other judges) gets started this way:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range.  United States v. Pimentel-Lopez, 828 F.3d 1173, 1176–77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits.  For all those reasons, we should have reheard this case en banc.

As long as the Supreme Court's 1999 Watts ruling is still good law, I think the dissent here has the better of the legal argument (though post-Watts SCOTUS Sixth Amendment jurisprudence arguably undermines Watts).  But I also think Watts is a rotten decision that ought to be formally overruled.  For that reason, I would love to see the US Solicitor General seek Supreme Court review and then see the defendant suggest a reconsideration of Watts if the Justices care to take up the case.

June 1, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, May 31, 2017

"Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation"

The title of this post is the title of this new paper authored by Kimberly Thomas and available via SSRN. Here is the abstract:

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes.  Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind.  This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies. 

May 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, May 30, 2017

"What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment"

The title of this post is the title of this short paper by Suja Thomas now available via SSRN.  Here is the abstract:

Plea bargaining and summary judgment have contributed to the disappearance of the jury.  This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

Here are a few paragraphs from the piece focused on plea bargaining:

Under the proposed plea offer requirement, if a criminal defendant does not accept the offered plea, then the prosecutor must try the criminal defendant on the charge in the proposed plea agreement along with the original charge.  In other circumstances, where the plea offer involved a charge reduction or sentencing bargaining, the defendant can present evidence of that plea offer at the trial for consideration by the jury.

Under the proposed sentence requirement, at trial, the jury would also hear information about the sentences that the defendant would receive if convicted of the different crimes and could convict based on these sentences.  Historically, juries possessed this information and could act on it.

By permitting the plea and sentence information to be presented at trial, the criminal defendant now has good reason to take a jury trial over the plea bargain.  The defendant can be found not guilty but, alternatively, if convicted, may receive the same sentence that the prosecutor offered in the plea agreement.

May 30, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Consensus reigning (for now) as SCOTUS continues working through its criminal docket

Because the Supreme Court has already resolved all of its major sentencing cases, there is not all that much for sentencing fans to anticipate as the Justices wind down with final opinions over the final weeks of its Term.  But there are still plenty of criminal justice cases pending that may still lead to notable opinions, and two such rulings were handed down this morning.  As the title of this post highlights, what strikes me as notable about these new opinions is how the Justices were content to speak in one voice despite the potential contentiousness of the issues.  

In Esquivel-Quintana v. Sessions, No. 16-54 (S. Ct. May 30, 2017) (available here), Justice Thomas wrote the opinion for the unanimous Court and it starts this way:

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor.

We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.  We hold that it does not.

In County of Los Angeles v. Mendez, No. 16-369 (S. Ct. May 30, 2017) (available here), Justice Alito wrote the opinion for the unanimous Court and it starts this way:

If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?  The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

May 30, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, May 28, 2017

"No Indeterminate Sentencing Without Parole"

The title of this post is the title of this new paper available via SSRN authored by Kevin Morrow and Katherine Puzauskas. Here is the abstract:

This article looks critically at Arizona’s indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993.  It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline.  Next it compares two commonly confused forms of “release”: parole and executive clemency.  The article then examines the three types of defendants and the potential consequences if Arizona does not reestablish parole for its indeterminate sentences: death row defendants denied parole eligibility instructions at trial, defendants whose plea agreement includes parole and defendants sentenced to parole at trial.  Finally, the article argues that without parole, Arizona’s indeterminate sentences should be ruled unconstitutional.

May 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

DC sniper Lee Malvo to get resentencing thanks to Miller Eighth Amendment rule

As reported in this AP piece, a "federal judge on Friday tossed out two life sentences for one of Virginia's most notorious criminals, sniper Lee Boyd Malvo, and ordered Virginia courts to hold new sentencing hearings."  Here is why:

In his ruling, U.S. District Judge Raymond Jackson in Norfolk said Malvo is entitled to new sentencing hearings after the U.S. Supreme Court ruled that mandatory life sentences for juveniles are unconstitutional.

Malvo was 17 when he was arrested in 2002 for a series of shootings that killed 10 people and wounded three over a three-week span in Virginia, Maryland and the District of Columbia, causing widespread fear throughout the region. His accomplice, John Allen Muhammad, was executed in 2009.

Malvo also was sentenced to life in prison in Maryland for the murders that occurred there. But his lawyers have made an appeal on similar grounds in that state.  A hearing is scheduled in June.

Fairfax County Commonwealth's Attorney Ray Morrogh, who helped prosecute Malvo in 2003, said the Virginia attorney general can appeal Jackson's ruling.  If not, Morrogh said he would pursue another life sentence, saying he believes Malvo meets the criteria for a harsh sentence....

Michael Kelly, spokesman for Virginia Attorney General Mark Herring, said Friday evening that the office is "reviewing the decision and will do everything possible, including a possible appeal, to make sure this convicted mass murderer serves the life sentences that were originally imposed."  He also noted that the convictions themselves stand and emphasized that, even if Malvo gets a new sentencing hearing, he could still be resentenced to a life term....

Jackson, in his ruling, wrote that Malvo was entitled to a new sentencing hearing because the Supreme Court's ruling grants new rights to juveniles that Malvo didn't know he had when he agreed to the plea bargain.

The full 25-page opinion resolving Malvo's habeas petition is available at this link.

May 28, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Wednesday, May 24, 2017

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

May 24, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

After nearly 35 years, is Alabama finally going to carry out death sentence in case showcasing capital punishment's myriad difficulties?

As detailed in this New York Times piece, headlined "Alabama Inmate Hopes to Dodge Death for an Eighth Time," an execution scheduled for tomorrow in Alabama is notable for many reasons. Here is the Times accounting of some of these reasons:

Tommy Arthur, who was first sentenced to death in 1983, has long imagined what could be his end: time in a so-called death cell, a choice of a last meal, the final telephone calls and then a lethal injection.  That end could come Thursday, his eighth execution date in a case that has spanned the tenures of eight Alabama governors, starting with George Wallace.  If it does, it will conclude a legal odyssey that quietly became, for death penalty supporters and critics alike, a symbol of the troubles of the capital punishment system in the United States.

“It’s one of those cases in which nobody is happy,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group that has voiced concerns about the application of capital punishment.  “People who simply want the execution are unhappy because of the passage of time,” he said.  “People who oppose the death penalty are unhappy because they don’t want Tommy Arthur executed. People who want fairness are unhappy because, despite the length of time this case has been in the courts, the process has never been fair.”

In Alabama, where 58 people have been put to death since Mr. Arthur was sentenced for the 1982 murder of Troy Wicker, the most pressing issue these days seems to be how long it takes to carry out capital sentences.  If Mr. Arthur, 75, is executed on Thursday, his death will come one week after the Legislature gave final approval to a plan to reduce the length of appeals in capital cases....

Mr. Arthur confessed to one murder but was given a death sentence for a second that he insists he did not commit.  In regards to the latter, the state authorities contend that Mr. Wicker’s wife, Judy, hired Mr. Arthur, her lover, to carry out the killing so she could collect an insurance payout.  Ms. Wicker, who was found guilty and spent about a decade in prison before being released on parole, ultimately testified against Mr. Arthur, who was on work release from a life sentence for another killing when Mr. Wicker was murdered. (A woman who answered the phone at a number connected to Ms. Wicker hung up on a reporter.)

Near the end of a trial in the early 1990s, Mr. Arthur proclaimed his innocence but asked for a death sentence that he said would allow him greater opportunities for appeal. “I will not be executed,” Mr. Arthur said, according to a transcript of the proceedings.  “I’m totally positive of that. I wouldn’t dare ask you for it if I thought for a minute that I would be executed.”

He had already won two new trials by then. In the years that followed, Mr. Arthur’s case began to stand out to some scholars and lawyers because he so frequently staved off scheduled executions.  Mr. Arthur, whose lawyers have not raised intellectual disability or mental health claims, maintained his innocence and sought new forensic testing of evidence.  He argued his sentence was unconstitutional and that his claims of ineffective counsel were never fully considered.  He raised questions about Alabama’s execution methods, including a challenge to a lethal injection drug, midazolam.

Another prisoner once admitted to Mr. Wicker’s murder, but a judge found that Mr. Arthur and the inmate had “engaged in an attempt to defraud” the court with a false confession.  A defense lawyer for Mr. Arthur, Suhana S. Han, said that litigation had still not led to a full airing of the facts and rulings on the merits of Mr. Arthur’s claims of innocence.  Instead, Mr. Arthur’s supporters see a government increasingly desperate to put a man to death....

State officials regard Mr. Arthur as someone who will do anything to avoid his death sentence.  “I think there’s just an attitude by the other side to basically file anything that they can whether it has any merit or not,” said Clay Crenshaw, chief deputy attorney general and a former leader of his office’s capital litigation division. “I think he and his lawyers have successfully manipulated the system.”...

Alabama has moved to limit the risk of protracted cases in the future, and on Friday, Gov. Kay Ivey is scheduled to sign a measure requiring capital defendants to pursue their direct and post-conviction appeals simultaneously in the state’s courts. Under existing law, defendants have been allowed to bring a new appeal after an earlier effort failed.

The Alabama attorney general, Steven T. Marshall, said the proposed changes, similar to provisions already in force in at least four other states, would benefit people affected by capital crimes without trampling on constitutional rights.  “This is victim-driven for us,” Mr. Marshall said.  “We’ve heard the stories. We’ve seen the anguish. Victims do not sense, in a capital setting, that their voices are heard fully.  This is an opportunity for us as a state to be able to say that we’re going to allow defendants to have their fair opportunity to be heard in court for their claims to be evaluated, but we’re going to do it in a timely way.”

But Mr. Dunham of the Death Penalty Information Center, who noted that 60 percent of death row exonerations since 2012 involved cases at least 20 years old, suggested that quickening the pace to the death chamber would very likely lead to more executions of innocent people.  In 2015, Alabama released an innocent man, Anthony Ray Hinton, after he spent almost 30 years on death row; the state had spent years resisting demands that investigators conduct new tests on an alleged murder weapon.  “This is not about having more efficient judicial review,” Mr. Dunham said. “This is about expediting executions at the expense of fairness and accuracy.”

The Arthur case only lurked in the background of the legislative debate, but Mr. Marshall, a local prosecutor until February, acknowledged that Mr. Arthur’s history had long attracted attention.  “It’s the example of how the system has failed victims, and how he’s manipulated, through various filings, the court system to delay what should have occurred long ago,” Mr. Marshall said.

May 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

May 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 23, 2017

"The Effects of Racial Profiling, Taste-Based Discrimination, and Enforcer Liability on Crime"

The title of this post is the title of this new paper by Murat Mungan now available via SSRN.  Here is the abstract:

The literature contains ambiguous findings as to whether statistical discrimination, e.g. in the form of racial profiling, causes a reduction in deterrence.  These analyses, however, assume that enforcers' incentives are exogenously fixed.  This article demonstrates that when the costs and benefits faced by officers in enforcing the law are endogenously determined, statistical discrimination as well as taste-based discrimination lead to an increase in criminal activity.  Moreover, the negative effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination.

This suggests, contrary to the impression created by the existing literature, that statistical discrimination is not only harmful, but, may be even more detrimental than taste-based discrimination.  Thus, for purposes of maximizing deterrence, the recent focus in empirical research on identifying taste-based discrimination as opposed to statistical discrimination may be misplaced.  A superior approach may be to identify whether any type of racial discrimination takes place in the enforcement of laws, and to provide enforcers with incentives to minimize the impact of their discriminatory behavior.

May 23, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6)

Tales of marijuana reform as sentencing reform from California after Prop 64

This recent AP article, headlined "California’s legal pot law helps reduce, erase convictions," serves as a reminder and reinforcement of my tendency to look at marijuana reform as often a kind of sentencing reform. The AP article reports on some interesting case-processing realities in the wake of new provisions in California law created by the state's 2016 marijuana legalization initiative, Prop 64. Here are some details:

Jay Schlauch’s conviction for peddling pot haunted him for nearly a quarter century. The felony prevented him from landing jobs, gave his wife doubts about tying the knot and cast a shadow over his typically sunny outlook on life.

So when an opportunity arose to reduce his record to a misdemeanor under the voter-approved law that legalized recreational marijuana last year, Schlauch wasted little time getting to court. “Why should I be lumped in with, you know, murderers and rapists and people who really deserve to get a felony?” he asked.

This lesser-known provision of Proposition 64 allows some convicts to wipe their rap sheets clean and offers hope for people with past convictions who are seeking work or loans. Past crimes can also pose a deportation threat for some convicts.

It’s hard to say how many people have benefited, but more than 2,500 requests were filed to reduce convictions or sentences, according to partial state figures reported through March. The figures do not yet include data from more than half of counties from the first quarter of the year. While the state does not tally the outcomes of those requests, prosecutors said they have not fought most petitions.

Marijuana legalization advocates, such as the Drug Policy Alliance, have held free legal clinics to help convicts get their records changed. Lawyers who specialize in pot defense have noted a steady flow of interest from new and former clients.

Attorney Bruce Margolin said he got two to three cases a week, many of them decades old.... Since the passage of Proposition 64, he’s gotten convicts out of prison, spared others time behind bars and successfully knocked felonies down to misdemeanors.

But he’s also encountered a lot of confusion about the law that went into effect immediately in November. “They were totally unprepared,” he said of judges and prosecutors in courts he’s appeared in throughout the state. “It’s amazing. You would have thought they should have had seminars to get them up to speed so we don’t have to go through the process of arguing things that are obvious, but we’re still getting that.”

That has not been the case in San Diego, where prosecutors watched polls trending in favor of marijuana legalization and moved proactively to prevent chaos, said Rachel Solov, chief of the collaborative courts division of the district attorney’s office. They learned lessons from the 2014 passage of Proposition 47, which reduced several nonviolent felonies to misdemeanors.

Prosecutors in the county researched which convicts serving time or probation were eligible for sentence reductions and notified the public defender’s office so they could quickly get into court. Many were freed immediately, Solov said. “Whether we agree with the law or not, our job is to enforce it,” Solov said. “It’s the right thing to do. If someone’s in custody and they shouldn’t be in custody anymore, we have an obligation to address that.”

San Diego County led the state with the most number of petitions reported in the first two months after the law was passed. It has reduced sentences or convictions in nearly 400 cases, Solov said.

In Mendocino County, where pot farming is big business and violent crimes are often tied to the crop, District Attorney C. David Eyster said he fights any case not eligible for a reduction, such as applicants with a major felony in their past, a sex offense or two previous convictions for the same crime.

May 23, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 22, 2017

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

May 22, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20)

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, May 21, 2017

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

The title of this post is the title of this notable paper authored by Neil Sobol and now available via SSRN.  Here is the abstract:

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem.  On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees.  The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.

For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection.  As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges.

Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties.  Moreover, new technologies allow for additional collection abuses.

To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution.  The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.

Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s’ licenses, arrest, and incarceration.  In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.

May 21, 2017 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.

May 21, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 19, 2017

"An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases"

The title of this post is the title of this new paper authored by Lauren Sudeall Lucas now available via SSRN.  Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty.  More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability.  Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof.  In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue.  Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence.  Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

May 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, May 18, 2017

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, May 16, 2017

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

"The Problem with Inference for Juvenile Defendants"

The title of this post is the title of this notable new article by Jenny Carroll recently posted to SSRN.  Here is the abstract:

Much of criminal law relies on proof by inference.  In criminal law, fact finders untangle not only what happened, but why it happened.  It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts — the world in which they occurred but also the fact finder’s own world.

Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes.  As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults.

Although criminal law has long accounted for this difference procedurally — most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law.  This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret — juvenile defendants.  Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Monday, May 15, 2017

Senator Rand Paul criticizes new Sessions Memo while promising to reintroduce Justice Safety Valve Act

In this new CNN commentary, headlined "Rand Paul: Sessions' sentencing plan would ruin lives," Senator Rand Paul provides a lengthy criticism of the new charging and sentencing memorandum released late last week by Attorney General Jeff Sessions (basics here).  Here are a few excerpts:

The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I'm the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement -- and the lives of many young drug offenders -- lies with the current attorney general.

The attorney general's new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation's drug epidemic for what it is -- a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have....

I want to go the opposite way from the attorney general. That's why I've partnered with Senator Leahy and once again will be reintroducing the Justice Safety Valve Act. This isn't about legalizing drugs. It is about making the punishment more fitting and not ruining more lives.

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

We need this legislation because while there is an existing safety valve in current law, it is very limited. It has a strict five-part test, and only about 23% of all drug offenders qualified for the safety valve.... Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.... Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.

I am quite pleased to see Senator Paul astutely use the new Sessions Memo to justify reintroduction and a renewed campaign for his elegant Justice Safety Valve Act (JSVA).  For a host of reasons, most notably simplicity, the JSVA has long been my favorite piece of proposed legislation to deal with the problems created by mandatory minimum sentencing statutes.   Along with Harlan Protess back in 2013, as detailed here, I even took to the pages of the Wall Street Journal to urge then President Obama to throw his support behind the JSVA. 

Given that Prez Obama never expressed support for the JSVA and that this bill never even got a vote in the Senate Judiciary Committee when under control by Democrats, I am not optimistic that the Sessions Memo will be enough to seriously enhance the JSVA's passage prospects.  But I am encouraged to see Senator Paul continuing to be an active and vocal and effective pace-setter for reform of federal mandatory minimum sentencing provisions and practices.

May 15, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)